The Victim & Witness Protection Law: Essential statute for justice
For recent communal violence 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 to enact the law on the protection of victims and witnesses within very short possible time. Recently, communal vandalism has been taken 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 constitutional promise and fundamental rights of the accused is provided in the Article 35(3) of our Constitution. 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 is up to victims and prosecution.
However, the word "victim" has not been defined either in the Penal Code, 1860 or in the Code of Criminal Procedure, 1898. We can, however, define 'victim' as a person or persons who, individually or collectively have suffered physical, emotional, financial, social or psychological injury as a result of the commission of an offence and in some cases.
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 preventing 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 organized posing a challenge to the existing administration of law and order. Particularly, murder, kidnapping, abduction, rape, human trafficking and children and narcotics cases have considerably increased and are being organized on a 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.
The Police Bureau of Investigation (PBI) conducted a research and published a report in July, 2019 on the dacoity 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% 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 make monitoring cell and monitoring committee for ensuring the production of witnesses in the courts, especially in the case of the Women& 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.
A comprehensive research by the daily Prothom Alo was conducted about the cases of the Women and Children Repression Prevention Tribunals of Dhaka from the year of 2002 to 2016. The said research claimed that only 03% case was disposed of as conviction to accused. They claimed that 55% case was closed not taking proper and sufficient witnesses. Moreover, the accused was acquitted only for witnesses. It is unfortunate that our Law Commission submitted a report and recommended to enact the concern Act, even they proposed a draft bill of the proposed Act in 2006 and later on 2011.
In our legal system, there are a few laws which provide the provisions 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 authority. Another statute is the Women & 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 show any threat, intimidation to victim and witness as well as show 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 which comprehensively covers the protection and legal rights of the children in the light of International standard. The International Crimes Tribunal Rules of Procedure, 2010, which 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 USA in 1982, 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, 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 protecting 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 senior judicial magistrate, Chief Judicial Magistrate Court, Feni