Law Event
Translate judgments into justice
Samaha M. Karim
“Translate judgments into justice”, that had been the catch phrase at the National Workshop on Sharing Judgments on Trafficking in Persons, the trends that can be depicted and the way forward. The Daywalka Foundation (TDF) organised the event and disseminated their research on a compilation of ten judgments relating to women and children trafficking. The law research team of TDF analysed ten randomly picked out judgments from the Nari-O-Shishu Nirjatan Daman Tribunals of various districts of Bangladesh. The compilation also contained two rulings of the Supreme Court of Bangladesh. It took place at the Pan Pacific Sonargoan on the evening of 10th September 2007. Justice Tafazzal Islam of the Supreme Court of Bangladesh graced the occasion as Chief Guest. The issue of Trafficking in Persons (TIP) had been discussed and highlighted from four different point of views -- that of the judiciary, the prosecutions, the law enforcement agency and international organisations such as the TDF and International Organization for Migration (IOM).
Trends of the Cases
The findings of the analysis had been documented as the judiciary being pro-victim. From the study of the case laws it had been found that repartition is a fundamental right. Previously it had been noted that the burden of proof lies on the complainant. However now there is a shift, by analysing these judgments it can be seen that the burden of proof has shifted to the accused. This is due to the trustworthiness of testimony and evidence. Another finding that was highlighted was that absconsion may be treated by the court as assumption of guilt. The study also found that the community participation to assist the victims was encouraging. Involvement of the NGOs, BDR, and local people to counter trafficking is really a fascinating revelation. The book also emphasised on the discretional abilities of the judges regarding sentencing the accused and the conviction.
Highlights from the discussions
The Chief Guest of the session explained that the judiciary on the other hand had repeatedly 
pointed out that the discretionary power of the judges is not as privileged as it sounds. The penalty that they sentence depends entirely on the availability of evidence. Based on evidence, conviction is sentenced which at times leaves hardly any room for flexibility as mostly there is a lack of evidence. The difficulty here lies in the fact that it is seen that the FIR doesn't match the witness's testimony at court giving the accused the benefit of the doubt. The burden lies on the prosecution to take the case beyond reasonable doubt. Also had the witness been given protection and security so that not to fall under any sort of peer pressure or be manipulated by community leaders or agents of the traffickers, and had been prepared for the court, accessibility of genuine evidence would have been easier. Most witnesses and victims are too traumatised and scared when they are asked to give their statements at court.
It had been settled at the discussion that the system is not victim friendly and the role of public prosecutors is critical as mostly they were politically appointed and the service they delivered were questionable. (This year the Ministry of Law, Justice and Parliamentary Affairs appointed a new set of public prosecutors in the country who are not politically affiliated) It is also discussed that they are very inadequately paid, those working outside the metropolitan areas receive Taka 250 per day and those within the area receive only Taka 500. Sometimes law officers keep material witnesses away from the court trials. These witnesses are pressurised, influenced by the accused to speak against the victim and at times oneself, resulting in acquittal. When the FIR/charge sheets contain discrepancies with the testimony given in the court, the evidence becomes unreliable and the benefit of the doubt goes to the accused.
Lack of resources is another major setback faced by the law enforcer as informed by Dhaka Metropolitan Police officials. Forms are not always available at the stations, there is no fixed format of filing a case, transportation is lacking, expenses and recovering a victim, ensuring his/her safety has an expense of about Taka 3000 per Nari-O-Shishu Nirjatan case.
The goal of TDF is to encourage personal direct relationship between the judiciary and all other levels of law enforcements, i.e. judge to judge, lawyers to lawyer, police to police, making it possible to work cross-borders, as Scott Parsons, Executive Director, TDF USA stated at the event. This is absolutely necessary to pursue cases against traffickers by sharing of intelligence, capacity and ideas. Only helping the trafficking survivors just doesn't develop cases. More and more survivors will immerge. The ultimate solution is to stop traffickers from doing what they are doing and that means investigating them, prosecuting and convicting them. Cases will get developed when they are analysed and studied in depth. The Law Research team of TDF has developed as an initiation their publication highlighting the landmark cases and their principles, which depicts the development that has occurred about the issue of TIP in Bangladesh so far. It has also opened up a scope of further study and brought out some defects that need to be amended.
The publication of the TDF also called attention to the Nari-O-Shishu Nirjatan Daman Ain 2000, which only deals the cases involving women and children within the age of 16. So male trafficking issues are not addressed...
More specifically this workshop was held to share judgments since most cases regarding trafficking in persons are disposed off. This is distinctively due to lack of evidence and poor presentation of evidence. Mostly discrepancies can be found in the testimonies and any sort of evidences due to negligence of law enforcements, community leaders of the area, traffickers and other surrounding circumstances. Most complainants are harassed and asked to compromise by the accused since there is no availability of a separate victim/witness protection legislation and knowledge about the government services. In our country we have legal aid system which is run by the government and there is nobody work to make people aware of that or to monitor that service. The legal systems of Bangladesh as addressed by members of the judiciary contain loopholes regarding authentic evidence, arguments and documents. In a foremost attempt to rise above these problems TDF initiated this workshop and disseminated their research on 'Judgments on Trafficking in Persons' to be used as a reference guide when combating such cases.
The writer is a student of London College of Legal Studies and working with The Daywalka Foundation, Bangladesh.
