A large number of cases, shortage of judges and faulty police chargesheets mostly delay rape case trials
The High Court (HC) last year ordered the authorities concerned to dispose of rape cases in 180 days. It came up with the ruling in its seven-point directive after hearing bail pleas of three separate rape cases of Bogura, Dhaka and Noakhali.
Of the cases, only the one of Bogura has been settled within 180 days while the Noakhali case still awaits charge framing. And the trial of the Dhaka case is still going on.
Currently, 2 lakh cases on women and child repression, and rape are pending with courts across the country. Of them, trials of around 40,000 cases have been running for more than five years, said Supreme Court sources.
Legal experts and rights activists said the HC directives almost remain just on papers as there is no visible initiative to implement those.
They pointed the finger at piled-up cases, severe shortage of judges, bureaucratic complexities, absence of witnesses at the court on hearing dates, faulty and late charge-sheet submission by police for the delay in case disposal.
Against this backdrop, the government recently introduced death penalty in rape cases after amending the Women and Children Repression Prevention Act in the wake of countrywide protests. In the amendment, disposing of rape cases in 180 days, or six months, has also been made mandatory.
It is not clear why the government has made a fresh provision for the disposal of rape cases within 180 days, said Dr Shahdeen Malik – a legal expert and Supreme Court lawyer.
"In the previous version of the relevant law, there was an obligation to settle rape cases in 180 days. Besides, there are already HC directives in this regard," he explained.
"The government has not taken any initiative yet to implement those HC directives issued twice in 2016 and 2019. There was no need to amend the law if they [the government] were sincere in implementing the directives."
The seven-point HC directive
In July last year, the HC bench of Justice M Enayetur Rahim and Justice Md Mustafizur Rahman issued the seven-point directive for a quick disposal of rape cases.
The directives are:
One, judges of the Women and Children Repression Prevention Tribunals are being directed to take necessary measures to dispose of rape, and rape and murder cases within 180 days on a priority basis.
Two, once the hearing begins, the cases will have to be continued without a break on every working day until the disposal.
Three, district-level monitoring committees, comprising additional district magistrate, additional superintendent of police, civil surgeon representative and respective tribunal's public prosecutor, will have to be formed in every district so that the witnesses come to the court on hearing dates and their security is ensured.
Four, if the prosecution fails to present the witnesses in court without a valid reason, the respective monitoring committee will be held accountable.
Five, the committees will have to monitor the issue of a prompt use of summons calling up a witness.
Six, if any public official as witnesses (magistrates, police, doctors or experts) do not appear to testify without satisfactory reasons even after receiving the summons, the tribunal will consider taking actions against the witness and, if necessary, withholding their salaries.
Seven, the observation of the court is that the Witness Protection Act needs to be enacted immediately, and the court also expects the government will enact it in the shortest possible time.
HC ordered actions if cases not settled within 180 days
The HC in 2016 directed the formation of a monitoring cell to take actions against individuals for their failure to dispose of a rape case within 180 days.
The registrar general of the Supreme Court was asked to form the cell. The HC said the registrar general himself could lead the cell with two other law and home ministry representatives.
The court in its ruling said the monitoring cell would review reports submitted by judges, public prosecutors and investigating officers on women and children repression cases that have not been disposed of within six months, and notify the HC.
The cell would also recommend actions against the individuals responsible for the non-disposal.
Contacted, former Supreme Court registrar general and retired district and sessions judge Syed Aminul Islam told the Business Standard that the cell could not be formed according to the HC order due to various reasons.
Meanwhile, Law Minister Anisul Huq said the HC directives were equivalent to a law. Many cases are now being settled quickly by following these instructions. The rate of rape case disposals has increased than it was before.
Why the directives not being implemented?
According to the Bangladesh Constitution, all the lower courts and tribunals are under the jurisdiction of the HC.
"Though the lower courts must follow the HC orders, allegations of non-compliance of those orders by them are quite frequent," said former law minister Barrister Shafique Ahmed.
Supreme Court Registrar General Md Ali Akbar was asked why the HC instructions are not being carried out. He replied, "It is often difficult to implement HC orders even if the courts are sincere since they face high case pressure."
Meanwhile, former Supreme Court registrar Iktedar Ahmed said there were questions as to how much control the HC has over the lower courts.
"The way the law ministry is controlling the judiciary indirectly, many orders are not being carried out due to bureaucratic complications," he noted.
Former district and sessions judge Moyeed Islam said the main reason behind the non-disposal of rape cases in 180 days was the absence of witnesses in courts.
"Police often do not carry out court summons to bring in the witnesses on due dates. In many cases, witnesses themselves do not dare to testify against the powerful accused," he added.
The former judge said physicians' testimony plays a crucial role in the trials of rape cases but it is not available always.
He also mentioned that the prosecution and lawyers have a vital role in a quick disposal of those cases.
However, Syed Aminul Islam, former registrar general of the Supreme Court, said the number of cases has vastly exceeded the capacity of the courts – resulting in a delay in settlement.
He said police also delay the investigation while their chargesheets are often found flawed and submitted late.
Two sensational slow-moving cases
The Dhaka Raintree Hotel rape case in 2017, and the rape and murder case on a running bus in Kishoreganj in 2018 prompted protests and nationwide uproar. However, the two sensational cases are yet to be settled.
On June 7, 2017, the investigating officer submitted the chargesheet in the Raintree Hotel rape case against five individuals. A Dhaka court on July 13 of the same year began the trial of the case by framing the charges.
Farooq Ahmed, the plaintiff's lawyer in the case, said the investigating officer of the case took time as he could not complete the investigation on time.
"The trial is being delayed as the court changed twice and judges thrice. The case is now pending with the Dhaka Women and Children Repression Prevention Tribunal-7," Farooq added.
Like the Raintree case, trial of the rape and murder case of Shahinur Akhter Tania – a nurse who was violated on a running bus, murdered and thrown away – is yet to be concluded.
Tania was raped and killed on May 6, 2018 in Kishoreganj's Katiadi area. On August 8 of that year, police submitted the chargesheet against nine people.