Trafficking and Legislations:
Organised crime syndicates control trafficking in women within and outside the country. Most of the countries in South Asian region have national criminal laws that prohibit trafficking in persons/women. But such laws are not being adequately enforced.
Constitutional Provisions
It is an encouraging fact that all of three countries selected for the study have constitutional provisions, which directly or indirectly prohibit trafficking in person irrespective of sex. Following is the country wise discussion on constitutional provisions, which prohibit trafficking:
The Constitution of Bangladesh ensures fundamental rights for every citizen. Part III of the Constitution guarantees fundamental rights and part II of it provides fundamental principles of the state policy. And all of these are based on the internationally accepted instruments of the United Nations e.g. UN Charter, Universal Declaration of Human Rights (UDHR).
The modern concept of humanism is that all human being irrespective of men, women and children have certain equal rights of life, liberty and pursuit of happiness. These rights are inherent, fundamental and inalienable. These are protected by Constitutional guarantees. These rights can be suspended, abridged or taken away only in accordance with the law.
The constitutionally guaranteed rights give ‘women equal rights with men in all spheres of the state and of public life contra-distinguished from private life which is the domain of a person’s personal law based primarily on religion.’
The Constitution contains some important fundamental rights. These include: (i) equality before law, (ii) abolition of discrimination on grounds of race, sex, caste, or place of birth, (iii) right to protection of law, (iv) freedom of movement, assembly, association, thought and conscience, speech, profession or occupation and religion, (v) right to property and (vi) right to protection of home and correspondence. These rights are inviolable and some of them may be restricted in case of emergency. The rights are guaranteed equally for male and female citizens of the country and for the persons staying in Bangladesh.
In his thesis, Mr. Ahmed observes: “Most of the fundamental rights of Bangladesh Constitution are of such a nature that they may be applied in favour of Women as well as men.” Such rights include right to equality e.g. equality before law, abolition of gender discrimination and right of protection of law.
The Constitution ensures right to protection of law. It enacts that “To enjoy the protection of the law, and to be treated in accordance with law,… is the inalienable right of every citizen,…, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.” And “No person shall be deprived of life or personal liberty save in accordance with law.”
As regards ‘equality before law,’ the Constitution provides that “All citizens are equal before law and are entitled to equal protection of law.” And discrimination is prohibited on grounds of religion, race, caste, sex and place of birth.Women’s equal rights with men are recognised “in all spheres of the state and of public life.” But this ‘equality clause’ does not help women in her personal life. In addition to that the constitution empowers the state to make laws for women, and it empowers the state for “making special provision in favour of women.’
The Constitution has no provision, which directly prohibits trafficking in human being. But some related articles prohibit the crime. The Constitution has categorically prohibited all “forms of forced labour,” which is a consequence of trafficking. And, “any contravention of this provision shall be an offence punishable in accordance with law.” Besides, the Constitution empowers the state to ‘adopt effective measures to prevent prostitution.’
Statutory Legislations
Bangladesh and India were a single State before 1947. So they inherit the same system of criminal justice.
The State of Bangladesh inherits laws and legal system existing in Pakistan, which was also a single State named India before 1947. Like India and Pakistan, the Code of Criminal Procedure (CrPC) and the Penal Code, in amended forms govern the criminal justice system in Bangladesh. The Penal Code contains provisions for penalising crimes related to adduction, kidnapping, subject to slavery, keeping in confinement, buying or disposing any person as a slave and selling for purpose of prostitution which in general cover trafficking. Sections 360, 362, 363, 365, 366 (A), 366 (B), 367, 368, 369, 370, 371, 372, 373 and 374 of the Code have provisions for penalising such crimes.
Like India, no Bangladeshi legislation-already repealed or now existing aims to abolish prostitutes and prostitution as such and make it per se a criminal offence or punish a woman as she prostitutes herself. But the law was or is to inhibit or abolish commercialised vice namely the trafficking in women (and children) for the purpose of prostitution as an organised crime.
Punishment under the Penal Code
The penalty for kidnapping any person is imprisonment of either description for a term, which may be extended to seven years and also fine.For kidnapping a person under the age of ten years and to be engaged in slavery, the punishment is death sentence or life imprisonment or rigorous imprisonment for a term, which may be extended to 14 years and shall not be less than seven years. If the kidnapped person is a major one, the punishment is imprisonment for either description for a form may be extended up to ten years and fine also.
The punishment for inducing or forcing or seducing any women under the age of 18 years to illicit intercourse with another person is imprisonment which may be extended to ten years and fine also.
The penalty for importing any woman under the age of 21 years into Bangladesh from any country to be forced or seduced to illicit intercourse with another person is imprisonment, which may be extended to 10 years and fine.
The Code also penalises crime related to enslavement. The punishment for importing, exporting, removing, buying, selling or dispensing of any person as a slave (or accepts, receives or detains against his/her will) is imprisonment of either description for a term which may be extended up to seven years and also fine. If anyone habitually deals in slaves the punishment is life sentence or imprisonment of either description for term not exceeding 10 years and also fine.
For selling or buying or hiring or disposing of any person, under the age of 18 years with intent that such person shall (at any age) be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, the punishment is imprisonment of either description for a term which may be extended to 10 years and also fine.
Special Laws
Having provisions for penalising crime relating to violence against women the Penal Code has been failing remarkably. The Code provides punishment of imprisonment ranging from only one year to 14 years for crime related to trafficking.
As overall incidents of violation of human rights of women had been increasing dramatically at the early 80s, women’s and human rights organisations were demanding special law with deterrent effect to stop violence against women and children.
In this circumstances, the then Chief Martial Law Administrator promulgated the Cruelty to Women (Deterrent Punishment) Ordinance, 1983. The expedition to promulgate such a law was “to provide for deterrent punishment for cruelty to women.”
[1] Khabir Uddin Ahmed, “Fundamental Rights of Women in Bangladesh Constitution and Muslim Law: A Comparative Study,” Unpublished Ph.D. dissertation, Institute of Bangladesh Studies, Rajshahi University, 1999, p. 19.
[2] Ibid.
[3] The Constitution of the People’s Republic of Bangladesh (hereinafter Constitution), Art. 31.
[4] Art. 32.
[5] Art. 27.
[6] Art. 28(1).
[7] Art. 28(2).
[8] Art. 28(4).
[9] Art. 34(1).
[11] Act XLV of 1860, 6 October, 1860. The law has successively been amended by A.O. 1937 and A.O. 1947 Sch. and the Bangladesh Laws (Revision and Declaration) Act, 1973 [Act VIII of 1973], Second Sch.
[12] The Penal Code, Section 363.
[14] Section 367.
[15] Section 366A.
[16] Section 366B.
[17] Section 370.
[18] Section 371.
[19] Section 372 and 373.
[20] Ordinance No. LX of 1983. Published in the Bangladesh Gazette on 10 March, 1983. The Ordinance has been repealed by the Oppression on Women and Children (Special Provision) Act, 1995.
The Cruelty to Women (Deterrent Punishment) Ordinance, 1983
The provision of the Ordinance overrides provisions contained in any other law.[1] This was the first legislation in Bangladesh, which provides penalty for crimes related to ‘trafficking in women’ specifically. Section 5 of the Ordinance reads as ‘whoever imports or exports, or sells, lets to hire or otherwise disposes of or buys, hires or otherwise obtains possession of any woman of any age with intent that such woman shall be employed or used for the purpose of prostitution[2] or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such woman will be employed or used for any such purpose shall be punishable with death or imprisonment for life[3] or with rigorous imprisonment for a term which may extend to fourteen years, and shall not be less than seven years[4] and shall also be liable to fine.’
When a woman is sold or let for hire or otherwise disposed of to a prostitution or to any person who manages it, the person disposing of such a woman shall be presumed to have disposed of her with the intent that she would be used for the purpose of prostitution, until contrary is proved. The gist of the offence is the exercise or effective control over a woman with intent that such a woman would be used for the purpose of prostitution or illicit intercourse.[5] The intention may be gathered from the facts proved.[6]
The law also provided the punishment with imprisonment for life or rigorous imprisonment for a term, which may extend to 14 years and fine also for the crime related to kidnap or abduction of woman for unlawful or immoral purposes.[7] Earlier, the punishment for kidnapping any person was imprisonment of either description for a term, which may extend to 10 years and fine also.[8] So the law of 1983 has increased the penalty.
The Oppression on Woman and Child (Special provision) Act, 1995[9]
This law was enacted with a view to penalise heinous crimes relating to oppression on women and children. With the enactment of this law the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 was repealed.[10] Like the 1983 Ordinance the 1995 Act also override other relevant laws.[11]
The Act of 1995 further strengthened the penalty for trafficking in woman. It also provided life imprisonment and fine for crime related to import, export, buy or sell or hire or otherwise transfer a woman to be engaged in prostitution or illicit intercourse or for immoral purposes.[12] The punishment for obtaining possession of a woman for importing, exporting, hiring or transferring otherwise to be engaged in prostitution or illicit intercourse or for immoral purposes was rigorous imprisonment for 14 years and fine.[13] This law provides life sentence to rigorous imprisonment, which may not be less than seven years and also fine for offence related to kidnapping or adduction of a woman to be engaged in prostitution or to be used for immoral purposes; forced marriage; forced or deceitful intercourse.[14] For crime relating to trafficking in a child the law, for the first time, provided the punishment of capital punishment or life imprisonment (Section 12).
Special Features of the Oppression on Women and Children (Special Provision) Act, 1995
Unlike the 1983 Ordinance the 1995 Act had some special features. The new law provided provisions for trial of offences relating to oppression on women and children by special courts (Section 15). There should be a special court in every district headquarter for training the crime covered by the 1995 Act (Section 16). The government could also established special courts in other places, if necessary, by Gazette notification. The court would be formed with a District and Session Judge. This also included Additional District and Session Judge.
The Oppression on Women and Children Control Act, 2000:[15]
The law has been passed to facilitate enactment of necessary rules for controlling oppression on women and children strictly.[16] With the enactment of this new law the Oppression on Women and Children (Special Provision) Act, 1995 has been repealed.[17] Like special laws of 1983 and 1995, the new one of 2000 also overrides other relevant laws.[18]
Special Features of the Act
The Oppression on Women and Children Control Act, 2000 has been enacted with a view to control ‘oppression’ as a whole on the vulnerable group of our society, women and children strictly. The new legislation has some special features.
Penalty
The newly enacted law provides punishment of death sentence or life imprisonment or rigorous imprisonment which may be extended up to 20 years but not less than 10 years and also fine for offence related to trafficking in women.[19] The punishment would be death sentence or rigorous imprisonment for life and fine if the victim is a child.[20]
The punishment for abducting a woman or child to be engaged in prostitution or unlawful or immoral purposes is life imprisonment or rigorous imprisonment up to 14 years and in addition fine.[21]
Rape[22] is the common consequence of trafficking. The Act provides the penalty for rapping a woman or child, a rigorous imprisonment for life and also fine.[23] If the victim dies following the rape the punishment would be death sentence or rigorous imprisonment and fine of taka not less than one lakh.[24] The same penalty would be sentenced to each of the gang if any woman or child dies following a gang rape.[25]
Special Tribunal
Section 26 of the Act deals with the formation of special tribunals. It provides that there would be the Oppression on Women and Children Control Tribunal in each district headquarter to try offences under the Act. The Government can establish more than one tribunal in a district, if necessary. The tribunal would be constituted with one Judge in the rank of District and Session Judge. This includes Additional District and Session Judge also.
The tribunal would not accept any offence for trial without a written report submitted by a police officer not bellow the rank of a Sub-Inspector (SI) or other authorised person designated by the government [Section 27(1)]. The tribunal may accept any complaint directly in exceptional cases [Section 27(1)].
Trial Procedure
The offences under the Act are cognisable and non-bailable. Only for exceptional circumstances, the tribunal may grant bail (Section 19).
The offence under the Act have to be investigated out by the concerned police officer within 60 days from receiving information regarding happenings of the Offence or being ordered by the Magistrate for the investigation. The Investigation officer may be granted 30 days more if s/he could convince the Tribunal that more time is needed for fare justice (Section 18).
The hearing of a case continues in the Tribunal in every working day until it comes to an end. The trial of a case has to be completed within 180 days after being accepted for trial by the tribunal (Section 20). The trial can be done in absence of the accused person(s) (Section 21).
[2] Prostitution means the offering by a woman of her body for purposes amounting to common lewdness for payment, R v. Webb (1963) 3 All ER 177.
[3] Amended by Act 37 of 1988 with effect from 10 July, 1988.
[5] Matiur Rahman v. The State, 21 DLR 903; 15 DLR WP 55; 15 DLR WP 115.
[6] T. Ammal v. S. Goundan, 24 Cr. L.J. 100; 29 Cr. L.J. 993.
[7] The Cruelty to Women (Deterrent Punishment) Ordinance, 1983, Section.4.
[8] The Penal Code, Section 364.
[9] Act XVII of 1995. The 1995 Act has been repealed by the Oppression on Women and Children Control Act, 2000.
[10] The Oppression on Women and Children (Special Provision) Act, 1995, Section 29.
[11] Ibid., Section 3.
[12] Ibid., Section 8(1).
[13] Ibid., Section 8(2).
[14] Ibid., Section 9.
[15]Act No. VIII of 2000. Published in the Bangladesh Gazette on 14 February, 2000.
[16] Preamble of the Law.
[17] The Oppression on Women and Children Control Act, 2000, Section 34.
[18] Section 3.
[19] Section 5. Woman means female of any age [Section 2(8)].
[20] Section 6. Child means any person not over 14 years of age [2(k)].
[21] Section 7.
[22] The Penal Code, Section 375.
[23] The Oppression on Women and Children Control, Act, 2000, Section 9(1).
[24] Section 9(2).
[25] Section 9(3).