Star Law Analysis
Anti-traffiking Law: A hallmark in the fight against human trade
In the recent times, the phenomenon of 'human trafficking' has crossed the state of denial. The Human Trafficking Deterrence and Suppression Act 2012 (w.e.f. 22 February) has been the most spectacular achievement of the ongoing anti-trafficking actions by the government and civil society organizations.
These days, Bangladesh has turned out to an increasingly fertile site for trafficking in persons for sexual and other forms of exploitation, and sometimes under the shadow of migration of workers for overseas work. Interestingly, Bangladesh has recently witnessed trafficking in human beings domestically. Ironically, however, there have not been enough arrests and convictions for the barbaric offence of human trafficking. There are reasons, though, behind this unsatisfactory state of actions.
Not that before the enactment of the HTDS Act there were no laws against human trafficking. Instead of a comprehensive law, a series of laws such as the Penal Code or the Nari O Shishu Nirjaton Daman Ain 2000 constituted the gamut of legal tools against human trafficking. These laws, however, largely failed to enact an effective anti-trafficking legal framework and skillfully avoided defining 'trafficking' in clear terms. The pre-2012 legal framework lacked a broader definition of human trafficking encompassing trafficking in men, women and children as well as trafficking for any purpose beyond merely sexual exploitation/'prostitution'. Another notable loophole was that, under no law human trafficking was seen as an 'organized crime'. Also, the victims of trafficking were not adequately treated and protected.
In the context of this deficient scenario of anti-human trafficking legal regime, the demand for comprehensive legislation to effectively prevent and suppress human trafficking in Bangladesh gathered momentum. As a result, in mid-2010, the Ministry of Home Affairs undertook the initiative of drafting a comprehensive law through a participatory way, a process that ultimately resulted in enactment of the Human Trafficking Deterrence and Suppression Act 2012 (HTDS Act).
This comprehensive anti-trafficking law has ushered in a new dawn in the existing legal framework against human trafficking in that it criminalises all forms of human trafficking, both internal and transnational. It has repealed certain old laws, namely the Suppression of Immoral Traffic Act 1933 and sections 5 and 6 of the Nari O Shishu Nirjatan Daman Ain 2000. It provides for the deterrence of the heinous crime of trafficking mainly through providing for effective prosecution of the offence and a protective regime for safeguarding and rehabilitating the victims. This is the first law in Bangladesh and, to some extent, also in South Asia, to include labour trafficking, i.e., trafficking in human beings for the purpose of exploitation through labour. A special feature of the new statute is that it does not retard, but rather promotes migration of people for overseas employment. The law indeed strikes the balance between the need for fostering migration for development and the need for controlling trafficking under the guise of migration. It is not out of place to mention that, the first case of 'trafficking in men' for the purpose labour exploitation overseas has been filed under this Act in May 2012 in Naogaon.
For the convenience of the readers, the salient features of the HTDS Act may now be summarized. In the words of trafficking literature, it may be said that the new law is premised on five Ps: Prevention, Prosecution, Protection, Partnership, and Principles. The Act provides for an inclusive definition of human-trafficking (sec. 3), which is of international standard, and provides for severe but rational punishment for the offence. When human trafficking is committed individually, the maximum punishment is an imprisonment for life (s. 6). When it is committed as an 'organized crime' the maximum punishment is the death penalty (s. 7). In either case, there are alternative punishments, but the criminal fine of varying amounts is compulsory. Trafficking offences are extraditable offences, and the Act applies extra-territorially. When trafficking has been committed abroad by or against a citizen of Bangladesh, the offence can be prosecuted under this Act.
The HTDS Act has provided for the establishment of an Anti-Human-Trafficking Offence Tribunal for the speedy trial of the trafficking offence. The prescribed timeline for trial is 180 days from the date of framing a charge. The Tribunal has been accorded wide powers such the powers to record evidence beyond the court premises as well by using electronic devices such as video-conferencing, to admit as evidence any proof, record or statement held electronically, to require any person to provide documents, to award civil compensation against the offenders (in addition to the fine to be imposed upon the convict), to attach control orders with the granting of bail, to attach and croak property of the convict gained through the commission of the offence, and, most importantly, to issue any suitable protective order for the protection of victims and witnesses even before any case is formally instituted.
The Act has empowered police with wide power of investigation and facilitates cross-country investigation. It provides for proactive inquiry and pre-emptive searches including provisions for 'regulated' searches without warrant. The timeframe for investigation is 90 working days, with the possibility of a limited extension.
The most striking feature of this Act is that, it has provided an integrated pack of protective measures for the victim of trafficking, enacting provisions for identification and rescue of the victims and for their repatriation, return, and rehabilitation and social-integration including medical treatment, legal-psychological counseling, and so on. In terms of overall protection of the victims of trafficking, the new statute provides for accountability of the government, government officials and non-government organizations. It lays down for private public partnership for its implementation and sets out a number of principles such as the principle of non-discrimination and the respect for human rights and dignity of victims.
The Act also seeks to protect the victims and witness within the criminal justice processes. It criminalizes, for example, the publicity/disclosure of the name, photograph or any other information/identity of the victim/witness and of any member of his or family without the permission of the Tribunal. Also, threatening the victims or witnesses is a punishable offence. Witnesses and victims of trafficking are entitled to claim security and other types of protection from the police and the concerned agency during, specially, when they live in the rehabilitation centres or travel to and from courts/police stations. Reasonable costs incurred by the victims and witnesses may now be realised under this law.
Another noteworthy feature is that, the Act sets out provisions regarding state to state mutual legal assistance. This will hopefully go a long way in suppressing organised crime of cross-border human trafficking. Until recently, there were no bilateral assistance agreement on the issue of human trafficking, nor did any statute mandate the conclusion of such inter-country or regional pacts. Following this Act, the government has already made progress on the issue of mutual legal assistance between Bangladesh and India regarding human trafficking offences.
The HTDS Act provides for the installation of a Fund to support fund anti-human trafficking activities of government agencies and possibly of any non-government organisation or civic activists. The Fund is soon expected to be created in the Ministry of Home Affairs.
Undoubtedly, the justice-focused HTDS Act is a landmark achievement in the long-running fight against human trafficking in Bangladesh, and there are grounds for celebrating it. However, if any meaningful and durable justice has to be done to the hundreds of victims of human trafficking, everyone concerned now has to undertake the challenge of implementing the goals of this Act. The Government has already laid down a solid step towards that end, by adopting the National Plan of Action 2012 to Combat Human Trafficking. Now, the preventive and protective functions under the new law are to be discharged by all duty-bearers and stakeholders in a spirit of commitment and partnership in accordance with the strategies and procedures contemplated in the NPA 2012.
The writer is Associate Professor Law, University of Dhaka.