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LAW ANALYSES : THE HUMAN TRAFFICKING DETERRENCE AND SUPPRESSION ACT 2012

Tool to combat women trafficking

Khandaker Farzana Rahman
Bangladesh is considered as a popular source in South Asia from which women are trafficked to India and other Gulf countries. There have been calls from international and national organisations before the government of Bangladesh to take initiatives to combat against women trafficking and rehabilitate victims.
In response to that, Bangladesh has legislated The Human Trafficking Deterrence and Suppression Act (HTDSA), 2012 to prosecute perpetrators by different terms of punishment as well as to prevent trafficking through mobilising resources for fund, allowing the victim to access legal aid and right to compensation. However, this Act is not well and widely applied in the ground, though its core features are complementary to prevent women trafficking through prosecuting the accused and rehabilitating the victims.
The HTDSA is a rights-based legislation, placing the concerns for the trafficking victims at the core of its functional fold. It criminalises all forms of human trafficking by covering both internal and transnational trafficking, allows for male victims of trafficking and provides for accountability of the government and non-public organisations.
The significant provisions of the said Act are, section 2(15) of the Act gives a non-exhaustive list of actions that would be considered as 'exploitation'. Section 5 provides for the extra-territorial application of the law when the victims or the perpetrators are Bangladeshi nationals and lists trafficking offences as an extraditable offence. Sections 6 and
7 provide for stern punishment for the trafficking offence (e.g. death penalty when the offence is in the form of organised crime and imprisonment for life in case of other types of the crime) and provides for ancillary offences (to stop demand side of trafficking). This Act in sections 21-22 and 27-30 also provides wide power to the special Tribunals for the prompt trial of trafficking offences. Under section 41, the Government can sign Memorandum of Understanding or Agreements with the other States where the victims of human trafficking, witnesses, money recovered or received out of the offences are present or probable to be present
The Act itself has some inconsistencies in its text and courts also encounter some problems regarding its implementation. Firstly, Section 47 of the HTDSA has omitted Suppression of Immoral Traffic Act 1933 and seaions 5 and 6 of Nari O Sishu Nirjatan Daman Ain 2000. Again Section 47(2) conveyed that despite the omission of the said Acts, any order, decision, direction or any aaion made under these omitted Aas shall be deemed to be taken and be continued under the HTDSA. This subseaion clearly violates the stringent provision of Article 35 of the Constitution which prohibits the ex-post-facto effea of any legislation. Thus Seaion 47(2), HTDSA is considered as ultra vires and according to 26( 1) of the Constitution this section becomes void ab initio.
One of the main challenges of this Act is the absence of limited time period in establishing a special tribunal or making procedural rules. The HTDSA empowers the government to establish special tribunal to
deal with trafficking cases specially. Due to absence of restriaed time limitation for such establishment, the cases under the HTDSA are being tried by the Nari O Shishu Nirjatan Daman Tribunal as per the instruction of section 21(2). However, this Tribunal is already overburdened with the cases that are filed under the Nari O Sishu Nirjatan Daman Ain 2000. Additionally, the Aa empowers Government to enaa rules on ground of guideline for the mutual legal assistance, legal education mechanism for the law enforcers, judicial officers, and public prosecutors, format of extradition treaty, composition to fulfill the purposes of the Act. Unfortunately, there is no specific time limit to make rules.
To ensure the prosecution of perpetrators under HTDSA, improved collaboration between the lawyers, police and judiciary is needed for investigation and examination of the cases. They need to talk and find out the implications of the law by having in-depth knowledge on the provisions of law. Providing better services to address viaim needs, specifically emergency shel-ter/housing and appropriate services are also important to enable effective prosecution of a case. The courts should employ a viaim-centered approach to prosecuting trafficking cases. Finally, the Government of Bangladesh needs to be proactive in applying the existing law as well as raising awareness among mass people along with professionals, and building partnership with relevant stakeholders.
THE WRITER IS LECTURER, DEPARTMENT OF CRIMINOLOGY, UNIVERSITY OF DHAKA.