• Sunday, Dec 05, 2021
  • Last Update : 09:36 am

Judge stripped of judicial power over rape case observations

  • Published at 10:20 am November 14th, 2021
rape law amendment protest
Protesters took to the streets on Friday, November 12, 2021, demanding the scrapping of a provision in the Evidence Act that allows for a woman's character to be questioned in a rape case Dhaka Tribune

Banani rape case observations will set ‘wrong direction’ for law enforcement agencies, says law minister

Mosammat Kamrunnahar, the judge who observed in a verdict that police should not record a rape case more than 72 hours after the rape, has been stripped of her ability to preside over any cases.

In a media statement on Sunday, Supreme Court Special Officer Saifur Rahman said Chief Justice Syed Mahmud Hossain took the decision in consultation with senior judges of the top court.

A letter to the Ministry of Law, Justice and Parliamentary Affairs from the Supreme Court on Sunday morning asked to temporarily revoke Mosammat Kamrunnahar’s criminal jurisdiction and to attach her to the Law and Justice Division of the ministry by withdrawing her from her current workplace.

On Sunday, the judge went to her chamber before 9am and received the letter. She later left the premises.

The move comes after Law Minister Anisul Huq described the observation made by the judge as totally illegal and unconstitutional, before adding that there is no time limit in the criminal justice system for recording a case against an offence.

Speaking to the media on Saturday, Huq, a criminal law expert, said he would write to the chief justice on the issue the next day.

Also Read - Law minister: Govt to repeal law allowing rape victim’s character to be questioned

Kamrunnahar, the judge of the Seventh Women and Children Repression Prevention Tribunal, on Thursday acquitted Shafat Ahmed, the son of one of the owners of Apan Jewellers, and four others of charges of raping two university students at a hotel in Dhaka’s Banani in 2017.

In her observation, the judge said that the investigating officer submitted a biased chargesheet and that medical reports of the victims did not find any signs of sexual violation.

"The victims came to the police 38 days after the incident, saying they had been raped. The investigating officer should have given the matter proper consideration,” said Kamrunnahar.

The investigation officer “wasted the people's time,” she said, before instructing police not record rape cases if more than 72 hours have passed since the incident.

The court commented that the victims had mutual sex with the accused and they already had an active sex life.

‘Tribunal’s observations embarrassing for other judges’

Following the Supreme Court’s decision to strip the judge of her judicial powers, Law Minister Anisul Huq on Sunday said her observations were embarrassing for other judges.

“That [the observations in the Banani rape case verdict] would set a wrong direction for law enforcement agencies. So, acting against [Mosammat Kamrunnahar] was very necessary. She will be asked to show cause. She will be asked to explain why she made that observation,” the law minister said.

He added that his ministry would comply with the chief justice’s order. “But you have to wait to know the future consequences of Judge Mosammat Kamrunnahar, as the chief justice has suspended her judicial powers for the time being.”

Writ seeks cancellation of provisions on character of rape survivors

A writ was filed with the High Court on Sunday seeking cancellation of the Evidence Act provisions on the character of rape survivors, reports UNB.

Lawyer Sara Hossain filed the petition on behalf of rights organizations Bangladesh Legal Aid and Services Trust (BLAST), Ain O Salish Kendra (ASK), and Naripokkho before the High Court bench of justice M Enayetur Rahim and Md Mostafizur Rahman.

The petition sought a rule on why sections 155 (4) and 146 (3) of the Evidence Act should not be deemed unconstitutional and abolished, said Sara Hossain.

The lawyer said: “According to these sections, a woman who files a complaint of rape and sexual harassment is generally presumed of immoral character and her character and background can be questioned and examined in the court.”

Section 155(4) of the act says: "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”

Meanwhile, section 146 (3) says that a witness, during cross examination, can be questioned to “shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or confiscation [sic].”

Human Rights Forum Bangladesh (HRFB), an alliance of 20 human rights and development organisations, arranged a press conference in the capital also to demand removal of the provisions.

Also Read - Is rape legal after 72 hours?

According to the existing legal system and the criminal procedure, there should not be any time limit for taking a case. Besides, there are many cases in the country in which trials have been completed after so many years, HRFB said.

They also said rape survivors often cannot file cases on time due to the various environmental complications. If the court fixes a time limit, then rapists will detain the raped women for 72 hours to keep them out of the judicial process.

Shaheen Anam, executive director of Manusher Jonno Foundation, said: “So many years after our independence, we are still disrespecting our women, questioning the character of a rape survivor, and declaring judgments that are shameful."

Shamsul Huda, advocate of the Dhaka Judge Court, said judgments like that in the Banani rape case go against the constitution and are shameful.

Meanwhile, 80 eminent citizens of the country also condemned the judge’s remarks.

In a joint statement issued on Sunday, the dignitaries including Dhaka University Professor Emeritus Serajul Islam Choudhury, former member of the National Human Rights Commission of Bangladesh Meghna Guhathakurta and women rights activist Maleka Begum strongly condemned the judicial system that blames a victim, and aquits the accused. 

They put focus on how the judge's one-sided and irresponsible observations in the rape case may increase violence against women in the country.

In the current social, political, and economic context of this country, most women do not have the opportunity to seek justice, and even if they do, it is safe to say that the perpetrator is almost never convicted, read the statement.

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