Legal framework on anti-trafficking in Bangladesh consists of the constitutional provisions, statues with direct implication to trafficking as well as certain complementary laws. Laws that have direct and indirect bearing with the discourse of human trafficking are:
3.1 Constitutional Provisions
Although none of the Constitutional provisions has defined the term trafficking, the following provisions have direct and indirect bearing on trafficking:
Constitution of the People’s Republic of Bangladesh provides that state shall adopt effective measures to prevent prostitution and gambling. By undertaking the responsibility to prevent prostitution, Bangladesh Constitution has identified prostitution as an anti-social act.
Article 19 declares that state shall endeavor to ensure equality of opportunity to all citizens. This article further declares that “state shall adopt effective measures to remove social and economic inequality between man and woman……….. .” The statement about removal of social inequality between man and woman is crucially important in the context of seriously gender-biased Bangladesh society. Gendered cultural practices, gender discrimination and violence against women in families and communities lay the ground for trafficking.
By undertaking the responsibility to secure the provision of basic necessities of life and to guarantee employment, the Constitution has addressed poverty issue which is considered one of the root causes of trafficking.
Many counter-trafficking studies have identified lack of education as one of the major causes of trafficking. The Constitution provides that state shall adopt effective measures for the purpose of and extending free and compulsory education to all children to such stage as may be determined by law. Pursuant to this provision Bangladesh Government has enacted the Primary Education Act, 1990 which obliges the parents to send their children to school. As a strategy for promoting female education, Bangladesh government has undertaken some realistic measures including massive motivational work and incentive programmed. Primary education has been made free and compulsory. Food for education programmed introduced as incentives for attending school at primary level has been very recently substituted by providing stipends to every student. In order to increase the number of girl students at the secondary level and prevent them from dropping out, the government of Bangladesh introduced stipends for girl students.
By incorporating the provision on protection of life and liberty of every person, the constitution has provided a basis for legal framework to combat trafficking. ‘Life’ within the meaning of Article 32 of the Constitution means something more than mere animal existence. Right to life includes the right to live consistently with human dignity and decency. The meaning of ‘Life’ also includes the right to freely moving about and mixing and commingling with fellow human beings. Liberty, on the other hand, encompasses a wide range of things. It means the right of an individual to be free in the enjoyment of all his/her faculties to live and work where s/he will. The term “Liberty” under law extends to all those conducts which an individual is free to pursue and which cannot be restricted except for a proper governmental purpose. The act of trafficking of persons for any purpose deprives the victim of personal liberty to make decisions about his/her life establishing a condition of slavery and servitude. Trafficking in persons is one of the most despicable forms of violation of human dignity and decency.
Article 34 (1) of the Constitution has guaranteed the right to be free from exploitation by explicitly prohibiting forced labour of any form. Any act contravening to this provision is punishable as a criminal offence. This provision has also laid a constitutional basis of counter trafficking legal framework as it declares forced labour as a criminal offence against state.
The Constitution of Bangladesh has inserted a unique provision on making special laws in favour of women or children or for the advancement of any backward section of citizens. This provision recognized the fact that an equality clause without any qualification would promote status quo even though there is necessity to ameliorate the position of women, children and backward section of the people by applying the principle of equity rather than equality. There is no denying the fact that existing socio-economic and cultural practices in Bangladesh that marginalizes women and children is responsible for making them more vulnerable to trafficking Thus in view of the said provision of the Constitution Bangladesh Government may make laws providing to women, children and backward sections of the people such privileges as are not accorded to others.. The said Constitutional provision that empowers the government to make special laws has huge potential to make preventive measures to combat trafficking as well as to formulate necessary strategy to take good care of traffic victims.
Article 31 of the Constitution guarantees the right to protection of law to every citizen wherever s/he may be. The same article also guarantees the protection of law to non-citizens who are for the time being within Bangladesh.
The constitutional framework thus provides a partial basis for right based approach to combat trafficking. The Constitution of the People’s Republic of Bangladesh has addressed the issue of trafficking in the following ways:
The Bangladesh Constitution did not provide for any definition of trafficking in persons. Even nowhere in the Constitution the term trafficking in persons has been mentioned. Some exploitative conditions of trafficking such as prostitution, forced labour of any form have been mentioned in the Constitution primarily from a law and order perspective by declaring them a criminal law discourse.
The Constitution of Bangladesh, in Fundamental Rights Part, prohibits all forms of forced labour. Freedom of profession or occupation has also been guaranteed in the Constitution. To engage anybody against his/her will to any profession or occupation which is one of the main purposes of trafficking of human beings is, therefore, the violation of the fundamental rights guaranteed in the Constitution. While the Constitutional framework to combat trafficking provides a right-based approach partially, it fails to address the mental pain and anguish that is caused without physical or sexual violence. Fundamental right to be free from forced labour has been defined from traditional criminal justice perspective. It did not take into consideration the concept of restorative criminal justice. As a result the concern of justice for contravention of this right is confined to punishment of offenders only. While punishment is necessary to eliminate forced labour of any forms, the interest of protecting the dignity and rehabilitating – both psychologically and materially – of the victim of slavery and servitude must be equally important concern of justice.
The Constitution guarantees the repatriation of trafficked victims. Article 31 of the Constitution guarantees the right to protection of law to every citizen wherever s/he may be. In the case of Abdul Gafur v. Bangladesh, the High Court Division held that repatriation of trafficked victim languishing in foreign soil is a fundamental right under the Constitution of Bangladesh.
Bangladesh Constitution has some provisions that can be used to combat trafficking effectively. For example, article 28 (4) creates the space for state to make special laws for women, children and backward section of people. Women and children friendly special laws can help reduce human trafficking in Bangladesh.
3.2 Specific Laws Related to Counter
3.2.1 The Penal Code 1860
The Penal Code deals with various offences related to trafficking, such as wrongful confinement and wrongful restraint, criminal force and assault to kidnapping, abduction, slavery, forced labour, rape, buying and selling of minors for the purpose of prostitution and other offences.
The Penal Code provides that whoever wrongfully confines any person shall be punished with imprisonment for a term, which may be 1 year to 3 years or fine of Taka 1000 or both depending on the number of days such a person is confined.
According to Penal Code, a person who is accused of kidnapping, or abduction another from Bangladesh is punished for a term, which may extend to 7 years.
Section 364A of the Penal Code provides that if any person kidnaps or abducts anyone under the age of 10 in order to subject such person to slavery or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment up to 14 years. On the other hand, kidnapping or abducting with intent to secretly and wrongfully confine is punishable with imprisonment which may extend to 7 years and with fine. The penalty for kidnapping or abduction of a woman with the intention of forcibly marrying her or forcing or seducing her to illicit intercourse is imprisonment for up to 10 years and fine. The punishment for the procurement of minor girls under 18 years of age and importation of girl from foreign country under the age of 21 and habitual dealing in slaves is a maximum sentence of 10 years. Buying and selling of minors under the age of 18 years for the purpose of prostitution or illicit intercourse or for any unlawful and immoral purpose is also punishable for up to 10 years imprisonment and fine. The punishment for unlawful compulsory labour is imprisonment for up to one year or fine or both.
3.2.2 The Children Act, 1974
This Act deals with custody, protection and treatment of children and also for trial and punishment of young offenders by juvenile courts. Chapter V of the Act deals with care and protection of destitute and neglected children awhile Part VI includes special offences in respect to children. This part describes penalties for different kinds of offences committed against a child, such as cruelty, employing for begging, handing over intoxicated liquor or dangerous drugs, exploitation, alluring the child to brothel, encouraging seduction and so forth. Section 41 of the Act states that whoever allows a child over the age of four to reside in or frequently to go to a brothel, shall be punishable with imprisonment for a term extending up to two years or fine or both.
3.2.3 The Prevention of Repression against Women and Children Act, 2000
Sections 5 and 6 of this Act deal with trafficking of women and children for prostitution and other immoral purposes. According to section 5 of the Act, whoever imports or traffic or send any woman in abroad with the intention of using that woman in prostitution or for unlawful or immoral purposes or buys or sells or lets to hire or hands over for any kinds of torture or for similar purpose keeps a woman in his possession, care or custody, shall be punished with death sentence or life imprisonment or imprisonment for not more than 20 years and not less than 10 years and with fine. According to section 6 of the Act, whoever imports or send any child in abroad or traffic or buys or sells that child for unlawful or immoral purpose or for similar purpose keeps a woman in his possession, care or custody, shall be punished with death sentence or life imprisonment or imprisonment for not more than 20 years and not less than 10 years and with fine. The Act also prescribes punishment for rape and rape related death. Section 9 of the Act provides that if a man commits rape upon a woman or a child shall be punishable with death sentence and shall also, in addition to that, be liable to monetary fine.
The Act 2000 has undergone some important changes through amendments made to it in 2003. One of the important changes has been brought to ensure accountability of investigating officer regarding failure to complete investigation in stipulated time period. The newly inserted provision provides that if it is proved that investigation offer is responsible for failure to investigate within prescribed time, he will be held liable for inefficiency and misconduct and legal action can be brought against him according to the service rules. The amended section 20 provides for trial in camera for offences prescribed under the Act. One of the most striking features of the amendment is concerned with the provision on safe custody. According to this newly inserted provision, in granting order relating to safe custody, the tribunal will accept and consider the opinion of women and children to protect their welfare and interest.
Moreover, the amended provision also prescribes accountability for tribunal in case of failure to resolve the dispute within stipulated time period under the Act. According to newly inserted section 31A, if the case is not resolved within the time period, concerned tribunal will prepare a report stating the reasons for such failure and will submit the report within thirty days to the Supreme Court. Similarly, concerned public prosecutor and police officer will also prepare such report and submit to the government within thirty days from such failure to resolve case. The relevant authorities will take necessary action against the person/s for failure to resolve case within stipulated time period.
3.3 Complimentary Laws Relating to Anti-Trafficking Legal Regime in Bangladesh
3.3.1 The Extradition Act, 1974
This Act makes provisions for extradition of fugitive offenders for committing the offences described in the Schedule annexed to the Act. Following offences are related to trafficking:
- Procuring or trafficking in women or young persons for immoral purposes
- Kidnapping, abduction or dealing in slaves
- Stealing, abandoning, exposing or unlawfully detaining a child
- Aiding and abetting any person in committing the abovementioned offences.
3.3.2 The Dowry Prohibition Act, 1980
One of the root causes of trafficking of women in Bangladesh is domestic violence. The major source of domestic violence is non-payment or partial payment of dowry.
Section 2 of this Act defines dowry as any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person related to either party to the marriage.
Section 6 of the Act further states that dowry not only includes money etc. agreed to be paid before or at the time of the marriage but also money etc. demanded afresh after the marriage for continuing the marriage already solemnized.
The Act also prescribes punishment for demanding and for giving and taking dowry. According to the Act, if any person demands, directly or indirectly, from the parents or guardians of a bride or bridegroom, as the case may be any dowry, he/she shall be punishable with imprisonment which may extend from 1 year to 5 years or with fine or with both. On the other hand, giving, taking or abetting the giving or taking of dowry is punishable with imprisonment or with fine or with both.
3.3.3 The Bangladesh Labour Code, 2006
The Labour Act adopted in 2006 has replaced many labour laws which were related to labour and child welfare having bearing on anti-trafficking measures. The newly enacted Labour Act, 2006, which comprehensively covers most of the aspects of labour laws, prohibits employment of children and young persons. Section 34 of the Act states that no child shall be required or allowed to work in any profession or establishment. Again section 35 of the Code provides that no parents or guardian of a child can make contract of employment of a child giving permission to work with anyone.
3.3.4 Primary Education Act, 1990
This Act directs the parents/ guardians to send their children to primary schools. Anybody failing to comply with this direction without reasonable cause may be punished with financial penalty which may extend to Taka 200.
3.3.5 The Child Marriage Restraint Act, 1929
The Act prohibits child marriage. Any adult male who marries a girl under 16 years and any parent or guardian who facilities this crime is liable for punishable offence.