Law campaign
Need for a law on human trafficking
Dr. Uttam Kumar Das
THE recently published Trafficking in Persons (TIP) Report of the US Department of State has brought into discussion the anti-human trafficking initiatives and measures in Bangladesh.
The Report has praised the Government of Bangladesh for initiating measures to prevent and prosecute “sex trafficking.” However, it has criticised the Government for not demonstrating “sufficient progress in criminally prosecuting and convicting labour trafficking offenders”. The Report also termed the role of the Government as “failure” for not having necessary measures to protect the labour from human trafficking.
The Report has recommendations for integrating the anti-labour trafficking objectives into national anti-trafficking policies and programs, increase criminal, prosecutions and punishments for all forms of labour trafficking, including those involving fraudulent labour recruitment and forced child labour among others.
There has been a notion until recently that only women and children could be trafficked. Actually, motivations purposes of the traffickers among others to some extend determine who will be trafficked. According to the United Nations Office of Drug and Crime (UNODC), human trafficking is the acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them.
It is true, for the purpose of sexual exploitation and forced prostitution or commercial sex works, women and young girls are mostly trafficked. Again, children are trafficked for the purpose of bonded labour, use and camel jockey, organ transplantation and begging among others. However, this list of purpose is not exhaustive.
At the same time, there has been a growing trend of trafficking of adult males all over the world. From a survey conducted in two eastern European countries among the 850 victims of trafficking, respectively 17% and 31% are found to be adult males. They have ended up in bonded labour and slavery like situations or similar practices which are tantamount to human trafficking. They have become victim of trafficking through the offer of 'well-paid overseas jobs.'
Like the Constitutions of India and Nepal, the Bangladesh Constitution does not have any provision which categorically make a reference to the issue of trafficking. For example, both the Indian and Nepali Constitutions prohibit 'human trafficking.”
However, there are certain provisions in the Constitution of Bangladesh [i.e. equality before law (Art 27), equal protection of law (Art 31), freedom from slavery (Art 34), freedom of movement (Art 36)] which could be translated for the "protection of the victims of human trafficking” as well. What is the position of the procedural law?
The Oppression of the Suppression of the Women and Children Act 2000 (with amendment in 2003) does only penalise trafficking of women and children. For example, Section 5 of the Act provides for a life-term (maximum 20 years) or minimum 10 years imprisonment for trafficking of women. Section 6, provides capital punishment (death sentence) or life imprisonment for trafficking of children. However, both the Sections are not clear as to whether those would be applicable in case of “internal-trafficking”.
By definition, a woman means female of all ages. However, with regard to child, the age limit is 16 years (either sex). That means a child victim above 16 years will not be covered by this Act. However, if one is a girl above 16, she could get benefit as a 'woman'.
This provision of the 2000 Act overrides other related existing laws. That means, in case of trafficking of women and children, provision of the Penal Code or other laws could not be used.
On the other hand, the Penal Code, 1860 has no direct reference to 'trafficking'. However, some sections of the Penal Code (i.e. from 362 to 375) are relevant to the outcomes of human trafficking (i.e. abduction, enticement, confinement, slavery, forced begging etc). However, penalties provided by those Sections are significantly lower compared to that of the Oppression of the Suppression of the Women and Children Act 2000.
Again, with regard to the labour migration from Bangladesh, the Emigration Ordinance, 1982 is the sole legal instrument supplemented by three Rules of 2002. The punishment for 'unlawful emigration' (for the migrant him/herself) is one year simple imprisonment or with fine not exceeding taka five thousand or both (Section 20).
The penalty for “fraudulently inducing to emigrate' is imprisonment for a term which may extend to five years, or with fine, or both (Section 21).
However, the age-old Ordinance does not have any provision to penalise the growing problems that of the “adult male trafficking in the forms of labour migration.”
There are also lack of understanding and sensitisation among the members of the law enforcement agencies, lawyers, judges, and those who are working on the issue.
There is a generalisation of the fact and issue- common phenomenon is that if an issue (offence) is related to an overseas job that has to be dealt with the Emigration Ordinance. That is true partially.
The Ordinance specifies which 'offences' are covered by it (Sections 20 to 25). But what will happen to those who are not covered by the Ordinance? Then, the question of judicial activism comes in. That should be an area of focus for all concerned. There may be two remedies for this.
Firstly, other related existing provisions of the law could be utilised in case of the labour form of human trafficking. For example, if someone is cheat, sold, enslaved, forced to beg, raped in the name of offering a job and in the process of migration, then the related Section of the Penal Code could be used against the offenders. In case of a female victim, the Section 5 of the Oppression of the Suppression of the Women and Children Act 2000 could be used- that is clear in law.
Secondly, there is a dire need to adopt a comprehensive law covering all possible aspects and dimensions of human trafficking including that of trafficking of labour. The trafficking of adult boys and males are no longer a myth, rather realities. Therefore, we need to have effective legal instrument to deal (i.e. penalise and prosecute) the issue. In this case, the guidelines by the Commonwealth Secretariat and UNODC, and related laws of Pakistan, Nepal, and Australia could be a reference point.
However, only adoption of law is not enough, if there is no real implementation and monitoring. Apart from that people's awareness on the growing trend of abuses and exploitations in labour migration, and raising skill for the potential migrant is important among others.
Dr. Uttam Kumar Das is a Human Rights Lawyer and Hubert H. Humphrey Fellow for 2009-2010.
