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OP-ED: New year, new laws

  • Published at 02:15 am October 13th, 2020

Bangladesh requires serious reforms in its existing laws

For better or for worse, the coronavirus has changed our lives. But with the increasing number of crimes during the pandemic, one thing is yet to undergo change -- the law. With the New Year only a couple of months away, it may be the right time to think of some changes to our existing laws and/or enact some new laws in the coming year. 

Laws addressing rape

To handle the increasing number of rapes, it has been argued by many scholars and/or academics of our country that massive changes must be made to the laws, especially s.375 of the Penal Code. This section clearly disregards that rape is a gender neutral crime and also disregards marital rape (unless the wife is under 13 years of age) and the punishment for rape is imprisonment for life or for 10 years. 

Nevertheless, Law Minister Anisul Huq recently told UNB that the ministry has proposed an amendment to the existing law, making death penalty the punishment for rape. Although the amendment awaits approval of the cabinet, it is a big step taken to tackle the situation. 

Research by the Rape Law Reform Now coalition subsuming 17 leading NGOs of Bangladesh also shows some stellar reforms that may be made to the existing laws of our country. Some of these reforms include the removal of discrimination, while another is that the definition of “penetration” must be broadened and include penetration by objects. 

Most importantly, the victim’s dignity, character, and privacy must be protected and therefore, character evidence must be removed from s.155 (4) of the Evidence Act 1872. If their proposed reforms are taken into consideration, the rape laws in our country will have some significantly beneficial changes in the upcoming years. 

Cyber laws

As for cyber laws, unfortunately, there still remain life-threatening crimes that are not addressed in statutes. For this reason, the situation regarding cyber crimes is worsening every day. 

Research shows that only 2.7% of the cases going to courts for the commission of cyber crimes get a conviction. 

This ultimately makes the culprits feel immune and commit more crimes. Although the Digital Security Act 2018 (DSA) has been a laudable statute for many reasons, the DSA is statute-specific, like the Pornography Control Act 2012. This means that evidence that can be brought under the Pornography Control Act cannot be brought for a case filed under the DSA. 

This creates a major problem when bringing evidence to courts as evidence is literally stopped from being admissible, and one has to undergo the hassle of filing another case under the specific law. 

There also seems to be a tendency to use the terms “electronic evidence” and “digital evidence” interchangeably, leading to a confusion between the two. 

To top it all off, dangerous crimes such as cyber-stalking and morphing have not been defined explicitly in our laws, giving rise to colossal gaps which the opportunists exploit. Thus, in the upcoming year, if changes are made in our cyber laws that address these problems, there is a chance that the conviction rates will go higher. 

Overburdened courts

Whilst these serious crimes are happening, it is also important to remember that smaller crimes are happening on a daily basis, which are overburdening the courts in our country. Independent research shows that it will take nearly 30 years to resolve all cases that are already filed in the courts as approximately 3.6 million cases remain in files. Thus, it is imperative that steps are taken to address this. 

On October 10, 2020, the MLAA held a virtual discussion on a possible law that aims to institute “Nogor Adalat”(s) in Bangladesh. The idea is to form new courts that will address the smaller issues of everyday life that do not necessarily need the attention of bigger courts. 

As the discussion amongst specialists from all over Bangladesh progressed, some changes were recognized that may be made to the law proposing the “Nogor Adalat” system. Particularly, s.19 of the draft act states that lawyers must not be appointed by either parties. 

This, therefore, makes it more likely for disabled people or people who need representatives to be deprived of the benefits of this court system. If the law is enacted in the upcoming year with the necessary changes, petty cases that are burdening the courts will be delegated to the “Nogor Adalat,” uplifting huge pressure from courts.  

Amidst all the new changes, one provision of the Code of Civil Procedure 1908 (CPC) must not be forgotten, ie, s.89A. This section essentially states that “after filing of a written statement,” the court shall (having adjourned the court) refer the dispute to a mediator. Much attention must be given to the words “after filing” because this essentially means that “after” two or more parties are head-locked, they are sent to peacefully resort by way of mediation. 

This post-litigation-mediation is unlikely to give any good result since parties are unlikely to come to a mutual and successful agreement after having sued each other in the court of law. 

Therefore, it is important that the word “after” is changed to “before” so that before relationships are worsened, the parties can come to a mutually agreed decision by way of mediation. 

The main aim of this article was to highlight some changes that may be made to our laws in order to increase access to justice, promote the delivery of justice and of course, to make 2021 a better year.

Anusha Islam Raha is a graduate of LLB (Hons) from BPP University, UK. She is currently studying LLM and pursuing her career as a teacher.