Reasons for the low rate of conviction in the VAW cases and inconsistencies in the legislative framework

Abstract

Violence against women is considered as one of the most pervasive and shameful violations of human rights of the world. In this context, Bangladesh has promulgated several legislations to combat violence against women. Along with the general substantive and procedural criminal legislations in force in Bangladesh, e.g., the Penal Code 1860 and the Code of Criminal Procedure 1898, several special criminal legislations have been enacted time to time to strictly punish the offences against women. Among them, the most prominent special criminal legislation now in force in Bangladesh which deals with the offences concerning violence against women is the Nari-o-Shishu Nirjatan Daman Ain 2000. This Act was enacted in the context of the loopholes in the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain 1995 which was in force before the promulgation of the Nari-o-Shishu Nirjatan Daman Ain 2000 except for the cases already filed under the Act of 1995. However, since the enactment of the Act of 2000, it has been facing criticisms for not being able to prevent violence against women effectively. One of the major concerns has been the abysmally low rate of conviction in the cases filed under the provisions of the Nari-o-Shishu Nirjatan Daman Ain 2000. In a report of Bangladesh Law Commission, it is found that the conviction rate in the VAW cases filed under the provisions of the Nari-o-Shishu Nirjatan Daman Ain 2000 is below 10% on an average. It can, therefore, be inferred that there must be some loopholes in the law because of which it has been failing to address this extreme low rate of conviction in the VAW cases. Following this context, the current research investigates broadly into two legal issues concerning violence against women (VAW) in Bangladesh. The first investigation relates to the reasons for the low conviction rate in the VAW cases filed under different provisions of the Nari-o-Shishu Nirjatan Daman Ain 2000, a special criminal legislation dealing with the VAW offences. The second investigation, on the other hand, looks into the legislative inconsistencies in the four specific VAW legislations namely, the Nari-o-Shishu Nirjatan Daman Ain 2000, the Dowry Prohibition Act 1980, the Domestic Violence (Prevention and Protection) Act 2010 and the Family Courts Ordinance 1985. This research has followed the mixed method approach combining both the quantitative and qualitative research methodology. Through quantitative data analysis and qualitative comparison of the legal provisions and judicial decisions, the present work hypothyses lack of proper and adequate evidence, weak presentation of the prosecution case, technicalities of law, harshness of law, filing of false, weak police investigation, out of court settlement, and case backlog as the main reasons responsible for the low conviction rate. For further investigation, based on the available statistics of cases in 2009 to 2014, Chapter Five then looks into whether the conviction rate is really low in the VAW cases considering the number of conviction in proportion to the number of cases filed and disposed of in the trial courts. Secondly, after establishing the fact of the low rate of conviction in the VAW cases by the relevant statistics, the research verifies these hypotheses analyzing the quantitative and 9 qualitative data collected from the justice sector agencies, judgments of the Supreme Court in 2000 to 2013 and the case studies of the trial court to locate the underlying reasons for the low rate of conviction. Chapter Five, in addition, finds that non-application of judicial mind by the trial court is another important reason responsible for the low rate of conviction. Over the years, this is exhibited that convictions in the VAW cases cannot sustain because of the improper application of law, legal infirmity, and lack of sound reasoning in the trial court‟s decision, excessive use of jurisdiction by the trail court, framing of wrong charge by the Tribunal, and the inappropriate trial procedure. Based on these findings, Chapter Seven puts forward several recommendations to mitigate the current trend of low conviction rate. Lastly, it is clarified that by identifying the level and reasons behind low conviction rate in the VAW cases, this research in any way does not advocate for the conviction rate to be high, rather, it expects a proper administration of justice aiming to uphold the rights of the poor and marginalized victims of violence as envisioned in the Act of 2000. The part of legislative inconsistencies also initiates with some hypotheses. The initial hypothesis was that there may be inconsistencies in the provisions of the selected the VAW legislations which may affect the administration of justice. Accordingly, data has been collected from the participants of quantitative interview asking them whether they experience any legislative inconsistency in the VAW legislations. Most of the participants answered that there is no glaring inconsistency but there are some problems which should be resolved by legislative amendment. Later, the above mentioned finding has been cross-verified by a qualitative comparison of the selected VAW legislations. Thus, It is found that, indeed there are some procedural and substantive inconsistencies in the selected VAW legislations. The provisions of dowry related offences in the Nari-o Shishu Nirjatan Daman Ain 2000 and in the Dowry Prohibition Act 1980 should be more consistent. All the dowry related offences should be dealt by one single legislation. Currently, dowry related offences are being dealt in both the Nari-O-Shishu Nirjatan Daman Ain 2000 and the Dowry Prohibition Act 1980. Uniform terminologies should be used to define „Dowry‟. The procedural provisions of the Nari-o Shishu Nirjatan Daman Ain 2000 should be more clarified to avoid any confusion with the provisions of the Code of Criminal Procedure 1898. The provisions in the Nari-o Shishu Nirjatan Daman Ain 2000 relating to bail granting power in the General Registrar (GR) cases are required to be extended. The Nari-O Shishu Nirjatan Daman Tribunals may be given with the power of granting bail at any stage of the proceedings. The provisions relating to the custody of child in the Domestic Violence Act 2010 and in the Family Courts Ordinance 1985 should be consistent and clear mentioning explicitly to which forum one should go in any particular situation. Moreover, the definition of “Child” should be uniform in all the VAW legislations. The judgment in a recent case, Shukkur Ali vs. State, pronounced by the Appellate Division of Bangladesh Supreme Court on 5 May 2015 has recommended for revising the dowry related provisions in the Nari-o-Shishu Nirjatan Daman Ain 2000. This judgment has also declared the mandatory death sentence for murder after rape provided in the Nari-o-Shishu Nirjatan Daman Bishesh Bidhan Ain 1995 to be unconstitutional. The Appellate Division has annulled section 34 10 (2) of the Nari-o-Shishu Nirjatan Daman Ain 2000 by which the already filed cases for murder after rape before coming into operation of the Act of 2000 used to continue to be tried under the Act of 1995. These decisions of the Appellate Division should be incorporated into law by legislative amendment to make the VAW legislations more consistent.