Is our legal system failing witnesses and victims of criminal cases?
Bangladesh is a common law practicing country, and here we follow the adversarial legal system in our judicial process. Constitutionally and conventionally, the long-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 provides in Article 35(3) of our constitution: “Every person accused of a criminal offense shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.” Thus, offenders have a wide range of rights, both constitutional and legal, in the trial of a criminal case.
But no specific law is there providing for the rights and protection of the victims, particularly the witnesses, although they are the principal actors for the prosecution to prove its case “beyond all reasonable doubt.”
However, the word “victim” is not defined in Penal Code 1860 nor 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 offense and in some cases.
The word “witness” can be defined as any person, including a child, who is, or may be, required to make a statement or give evidence or who has made a statement or given evidence, in any investigative or judicial proceedings in relation to the commission of an offense.
The victim of a crime plays a very important role in the administration of criminal justice both as a complainant/informant and also as a witness for the prosecution. But these victims are vulnerable to threats, intimidation, coercion, and harassment by the offenders or their associates preventing the victims from testifying before the investigating officer.
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.
As a magistrate, I have experienced a number of cases where the witnesses complained that the accused had been fearful of appearing in court.
In August 2019, a girl was gang-raped and murdered in the Patuakhali District because her mother had testified as a witness in the rape case against the accused.
The Police Bureau of Investigation (PBI) conducted 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 Department admitted that 48.45% of all cases were failed and the accused was acquitted in the last 10 years because of the witnesses.
Recently, the High Court Division (HCD), in few cases, set some guidelines for speedy trials and ordered to establish a monitoring cell and monitoring committee for ensuring the production of witnesses in courts -- especially in the case of the Anti-Women and Children Repression Tribunal cases. The HCD has said the government will take proper initiatives to formulate laws on the protection of victims and witnesses.
Recently, by the initiative of a national daily, a comprehensive piece of research was conducted about the cases of the Anti-Women and Children Repression Tribunals of Dhaka from the year of 2002 to 2016.
In the conducted research, the total number of cases was 7,864, and among them, 2,604 cases were about rape, gang rape, and murder-rape. The said research claimed that only 3% of all cases were disposed of as conviction to accused; 55% of all cases were closed and the accused was acquitted only because of witnesses.
In our legal system, there are a few laws which make space for the protection of victim and witness.
One of the better acts is the Prevention of Torture and Custodial Death Act 2013, as it provides comprehensive protection in the custody of law enforcement.
A comprehensive set of laws for the protection of victims and witnesses is the need of the hour. The aim should be to protect 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.
Md Zakir Hossain is Senior Judicial Magistrate of Feni.