Khaled Saifullah
Crime in any form undermines the rights of the victim. While some of these rights are created by national penal laws, others are inalienable human rights enshrined either in national constitutions as bill of rights or in international human rights instruments. It is generally understood that ordinary crimes are committed by persons in their private capacity, and the state is not responsible for such breaches of national penal laws. By contrast, the state is held responsible for the violation of human rights by its agencies or officials. This distinction between ordinary crimes and human rights violations is, however, not often clear. Indeed, the state may in some way be held responsible for the acts of private individuals. Also, there is a new approach called horizontal application of human rights coming to the fore which argues that private individuals themselves may be held liable for human rights violations. Put simply, both private citizens and the state owe a duty to uphold human rights of citizens.
The aim of this article, however, is not to go any deeper into that debate, rather to elucidate the link between crimes and human rights, and to make a call for a human rights-based approach to the trial of crimes. There is an emergent trend of considering certain crimes like trafficking in human beings, violence against women and children, sexual harassment, and forced labour as forms of human rights violations. Take, for example, the case of violence against women. The list of human rights violations this particular form of crime generates is quite long. It violates the right to life and the right not to be subjected to torture, the right to liberty and security, the rights to equal protection of law and to equality in family, the right to just and favourable conditions of work and so on. The same is the case also with the crimes of human trafficking, sex-based violence and harassment, and forced labour. It is pertinent to mention here that within one year into its independence, Bangladesh empathically displayed its commitment to uphold human rights of its citizens by incorporating major human rights into Part III of the Constitution. In recent years, it has also ratified dozens of major international human rights treaties, thereby assuming an obligation not only to internalise human rights principles, but also to ensure the adherence to these principles especially by the Government and all other state agencies. Interestingly, in the field of administration of criminal justice, a plethora of criminal statutes, supplementing the country’s bill of rights, seek to uphold the rights of victims of crimes, instead of any stand-alone human rights legislation. This specialty, coupled with the gratuitously strict adherence to the national penal laws by the courts, however, ironically results in an inadequate protection of human rights of victims of certain crimes that severely undermine their human rights and dignity. For example, our courts used to send women victims of violence to prison, needless to say, against their will and in the name of placing them in a ‘safe custody’. In case of victims of trafficking, the courts tend to send the victims to shelter-homes almost on a regular basis, without adequately taking into account the primacy of the victims’ right to liberty and self-dignity and the human rights conditions of those shelter-homes. Although certain legislations like the Suppression of Repression against Women and Children Act 2000, and the Human Trafficking Deterrence and Suppression Act 2012 largely remedied the issue of inhumane ‘safe custody’, the instances of judicial orders sending victims of crimes to prisons are still prevalent. Positivist, rather than rights-based, approach to criminal laws by the judges sometimes not only results in acquittals, but also seriously impairs the victims’ right to have justice. In State v. Anjali Devi @ Monju Devi, 29 BLD (2009) (HCD) 445, for example, the High Court Division overruled a conviction of a child-trafficker, mainly on the ground that the offender having been caught within the territory of Bangladesh, the trafficking offence was yet to be complete. While doing so, it reasoned that as the child was not trafficked to India, the intention of the trafficker is unclear and hence cannot be convicted. With all due respect to the court, this kind of reasoning seems to be deficient in a rights-sensitive understanding of the complex phenomenon of human trafficking. By contrast, the Court in this particular case, by adopting a rights-based approach, could have prosecuted the accused for the violations of human rights and dignity of the victim. In another instance, Debobrata Baiddya v. The State, 26 BLD (2006) (HCD) 15, the accused on the pretext of taking the victim to a private tutor called and took him away from his residence and since then the victim went missing. While dealing with this case of human trafficking, the High Court Division did not dig enough to find out the person or persons responsible for trafficking. It can be argued that, had the court been sensitized enough to the effect that it was dealing with no ordinary victim, but rather with a victim of modern day slavery whose fundamental rights were seriously breached, it could have looked for avenues to find evidence and convict the traffickers effectively. However, the record of protection of human rights of such victims is not all doom and gloom. The courts in some cases tried the crimes from a human rights consideration. One such good instance is the case of Abdul Gafur v. Secretary, Ministry of Foreign Affairs (HCD), 14 August 1997, where it was held that human trafficking affected the victim’s right to life and liberty as guaranteed in the Constitution, and as such the victim is entitled to be rescued and repatriated. Ridwanul Hoque, a leading scholar on judicial activism in Bangladesh, traced some of such instances in a recently written Training Manual where, as he showed, the judges sensitised in human rights awareness made a difference by granting innovative remedies for the protection of victims’ human rights (Training Manual for Judges and Prosecutors on Violence against Women, JATI and IOM: Dhaka, 2011). Taking into consideration the unique social status and gender based vulnerability of women, the High Court Division in Dilruba Aktar v. AHM Mohsin (2003) 55 DLR (HCD) 568, ordered the criminal fine to be paid to the victim as compensation for the offence of taking second wife without the permission of the ‘arbitration council’, although the relevant law did not specifically provide for this remedy (Hoque, ibid.). In Shibu Pada Acharjee v. State (2004) 56 DLR (HCD) 285, the court considered rape a deplorable violation of one’s right to life, and held that the perpetrator should receive serious punishment so that justice be done to both the victim and society. Also, in State v. Moslem (2003) 55 DLR (HCD) 166, the Court has reduced the evidential requirements in rape cases considering social factors. The cases outlined above make it clear that a different approach in using these existing criminal legislations from both lawyers and judges accounts for a much better result in the protection of human rights of the victims of serious crimes. But hardly the lawyers argue for and the judge resort to human rights based approach while trying this particular type of crimes. For the judges, they are the guarantor of justice. They pledge to perform the noble job of safeguarding the rights of fellow citizens. While strict adherence to the national penal laws may undermine their noble job of protecting the rights of general people by making themselves handicapped, being sensitized about the value of human rights breached when crimes are committed, they can make a big difference in ensuring proper criminal justice. The lawyers also have a part to play in improving the present unfortunate condition. They must incorporate human rights based arguments while representing the victims of such crimes. These small but significant arguments should help to inform and sensitize the judges to act proactively to protect the human rights of the victims of such crimes. Having said that, it must also be kept in mind that the approach to human rights violations and ordinary crimes need not be seen radically differently. Indeed, the victims of crimes and human rights violations have many needs in common, such as a possible need for medical attention including the help for emotional problems, entitlement to compensation as reparation, and various forms of special protection and assistance. Marking the human rights of victims of crimes as the primary consideration in the pursuit of criminal justice responses to the concerned crimes, integrating gender and age-based perspectives into investigations and prosecutions, and designing and delivering support services to victims in a manner that is compatible with a human rights based approach would bring in a marked difference in ensuring justice for those subjected to crimes.