On May 28, 2020 a nightmare unfolded in Libya as the family of a Libyan human trafficker killed 30 migrants, including 26 Bangladeshi nationals, who were being held in captivity by the trafficker till they managed to stage an uprising against their captors, at least one of whom they killed. Libya's internationally recognised Government of National Accord (GNA) has stated that the 26 Bangladeshis and four African migrants were made hostage by Libyan human traffickers for extra money. In response the government here has started a crackdown operation against traffickers and filed 27 cases across the country, leading to numerous arrests.
Human trafficking is a crime violating human rights as well as health and cross-border issue. No country is immune to human trafficking. Each year, an estimated 600,000 to 800,000 men, women and children are trafficked across international borders. The International Labour Organization estimates there are 21 million people globally who are victims of forced labour, and this includes victims of human trafficking for labour and sexual exploitation. According to a recent United Nations Office on Drugs and Crime's (UNODC) Global Report on Trafficking in Persons, nearly one-third of all human trafficking victims are children while 71 percent are women and girls. It has also become the fastest growing criminal enterprise in the world. Bangladesh is one of the source countries as well as transit points for human trafficking.
The government of Bangladesh enacted one of the finest and most effective laws in 2012 titled “the Prevention and Suppression of Human Trafficking Act in 2012 (hereinafter ‘the Act’)” (Act no 3 of 2012) covering every side of crime, investigation, trial and effectively implementation of this law. But in Bangladesh, no remedial approach is achieved from this Act. Apart from this, The Overseas Employment and Migration Act 2013, The Children Act 2013, The Penal Code of 1860 and The Women and Children Repression Prevention Act of 2000 are also very relevant to ensure justice on human trafficking. In this writing I try to focus how Act 2012 can ensure a speedy and effective trial of trafficking cases and its way out.
According to the definition of human trafficking as adopted at the United Nations General Assembly in 1994, illegal or secret crossing of country’s boundary by the people of the developing countries or the countries with economic transition is called human trafficking. In the Act of 2012, section 3 defines extensively human trafficking referring every angle of trafficking and includes all forms of possible way of trafficking. The explanation of this section is also effective to interpret the definition. In definition, clause 10 of section 2 clears about the victim of trafficking extensively.
The unique feature of this Act is that it covers various formations of trafficking in Bangladesh and out of Bangladesh, gives protection of victims, inserts different aspects of punishment, huge fine and compensation for victims, protection and security to victim and witnesses of the case, empowers tribunal to do justice on vast discretionary powers, postulates digital evidence, guidelines to investigation and trial and innovative explanation about the adducing evidence and evaluation. Some revolutionary provisions are epoch making in our legal system.
This is special substantive and procedural law. The offences of this Act are cognizable, non-bailable and non-compoundable. Section 19 empowers Police to start proactive inquiry when they get any information about trafficking and then file FIR. The investigating officer will get 90 days for investigation and he can submit prayer for extension of time for another 30 days as per section 19 (3) & (4). The Anti-Human Trafficking Offence Tribunal (hereinafter Tribunal) will be formed by a Judge of Sessions Judge or Additional Sessions Judge in every district. If the Tribunal is not created, then the Women and Children Prevention Tribunal will be charged with this tribunal as per section 21. This law came into force on February 20, 2012 and only seven tribunals in Divisional districts were created on March 03, 2020. For creation of tribunals, it has taken time for 8 years. On March 08, 2020 the Judge of these seven tribunals was posted for initiating their offices.
The time limit of the trial of the Tribunal is 180 working days. If the Tribunal can’t complete the trial, the Tribunal will send letter stating reasons to Supreme Court of Bangladesh within 10 days. There is no legal action about the trial beyond 180 working days as per section 24. This legislation confers huge discretionary powers upon the Tribunal for ensuring justice among the parties specially victims. The Tribunal can hold camera trials for ends of justice, evaluate the sufferings of victims to determine compensation, confiscate the assets and properties of the accused before judgment. The Tribunal can direct to give fine to victims as compensation and determine additional compensation for victims.
The epoch making principle of evaluating evidence is introduced in the Act. The Tribunal can accept any kind of audio, video and digital evidence as per section 30. The Tribunal can issue protective order for ensuring justice and take evidence of victims and witnesses to ensure security, speedy trial through electronic or digital means, commission and directly by the tribunal. It will be considered as evidence as per section 22 (1) and (2). Moreover the Tribunal can admit any attested document by our foreign envoy. The Power of Attorney through diplomatic channel will be admissible as evidence in the trial. In such circumstances, no witness can be called for introducing content of evidence. In this Act, the protection towards victims and witnesses is ensured specially. The Tribunal can order to provide security for victims and witnesses as per section 33, 37 & 38. These provisions are just unknown to any other legal instruments in Bangladesh.
In last 8 years, a total of 6,134 cases have been filed and only 233 cases are disposed, which is only 4 per cent of the cases. 5,901 cases are under trial across the country. Only 54 accused have been convicted in 33 cases in this time. [Source: the daily Samakal, June 10, 2020] To understand the implications of such a low conviction rate, let me point out that these cases involve the trafficking of over five thousand men, a thousand women and over 800 children. As per the law, the tribunal was supposed to be constituted to deal with the cases. But after eight years, an order on March 03, 2020 has been given to constitute seven tribunals in seven divisions and later on, on March 08, 2020 seven judges of rank of District & Sessions Judge have been posted to initiate the tribunals.
In Cox’s Bazar, Jessore, Sathkhira, Pabna, Mymensingh, Brahmanbaria, Cumilla, Bogura and some other districts, there have been filed huge cases on human trafficking but there is no separate tribunal yet. Now the Prevention of Women & Children Repression Tribunal is in additional charge of human trafficking tribunal. There are almost 170,000 cases along with additional charge of the Children Court with almost another 30,000 cases in 101of the Prevention of Women & Children Repression Tribunals. For such backlog in the Prevention of Women & Children Repression Tribunals, the cases on human trafficking can’t get possible focus and speed to dispose of.
In the Trafficking in Persons (TIP) 2018 report, published by the US Department of State’s Office to Monitor and Combat Trafficking in Persons, Bangladesh has been placed in the ‘Tier 2 Watch List’, which is an indicator for vulnerability. The report suggests that Bangladesh failed to provide evidence of increased efforts to combat trafficking. Although Bangladesh formed the Prevention and Suppression of Human Trafficking Act in 2012, the number of prosecutions and convictions under the act remains extremely low.
US Department of State Report 2019 depicted that “the Government of Bangladesh does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. These efforts included adopting a national action plan to combat trafficking, convicting traffickers, initiating an investigation into a police officer accused of child sex trafficking, and continuing to investigate some potential trafficking crimes against Rohingya refugees.” Therefore Bangladesh remained on Tier 2 Watch List for the third consecutive year.
To set speedy and effective trial, we need to incorporate encountering human trafficking objectives into our national anti-trafficking policies and programs. We have to ensure criminal prosecutions and punishments for all forms of illegal migration and labor trafficking, including those involving fraudulent labor recruitment and forced child labor. Law and enforcement agencies have to ensure in-depth investigation and prosecute government officials who may be suspect of complicity in trafficking. We have to ensure that we are penalizing only the facilitators and organizer of illegal migration and human trafficking network.
In this legislation, there are some provisions to build up confidence getting justice through sustainable format. Section 19 (6) provides to constitute a high profile central monitoring cell at Police Head Quarter to oversight the filing cases and investigation. In some provisions, there are expounded provisions to constitute ‘Prevention of Human Trafficking Fund’ to assist and rehabilitant victim and witness of the offence. To accelerate the justice on human trafficking, the government should establish more tribunals in the districts where human trafficking cases are more. The government can constitute monitoring cell through Supreme Court of Bangladesh, Law and Justice Division and Ministry of Home Affairs for ensuring effective and speedy justice. In a nutshell, there should be a political decision and a strong message to perpetrators about the implementation of legal commitment of the Act.
(The writer acknowledges with gratitude the different sources of information.)
The writer is a member of Bangladesh Judicial Service & Senior Judicial Magistrate of Feni.