Ordinance likely Tuesday on capital punishment for rape

President Mohammad Abdul Hamid is likely to promulgate an ordinance on Tuesday, increasing the maximum punishment for rape to death from life imprisonment.

The cabinet on Monday approved the draft of the "Women and Children Repression Prevention (Amendment) Ordinance 2020", incorporating the provision of capital punishment for the heinous crime in the face of countrywide protests against violence towards women.

"The law needed to be amended quickly. Therefore, it has been decided to issue an ordinance as parliament is not in session," Law Minister Anisul Huq told The Business Standard.

Cabinet Secretary Khandker Anwarul Islam said, "The president can formulate or announce the ordinance if he considers that the necessary state of affairs has currently been prevailing to take measures to this effect using the power vested upon him in accordance with Article 93 (1) of the Constitution as no session is now running in parliament."

According to Article 9 (1) of the existing Women and Children Repression Prevention Act 2000, the punishment for rape is life-term imprisonment, the law minister noted.

"The cabinet approved amendments to Article 9 (1) of the existing law. The death penalty or life sentence has been proposed as the punishment for rape in it."

Cabinet Secretary Anwarul Islam said, "We have gone through laws of many countries. The amendments have been brought to the existing law, in consideration of all the aspects, including the present situation and the reality."

According to the list published by The World Population Review based on the number of rape incidents per 100,000 citizens in 2020, rape incidents have been reported at 9.82 per 1 lakh in Bangladesh.

It is 1.8 In India and 0.8 in Nepal, which is the lowest in the region. According to it, Liechtenstein, the European principality, stands at the top of the list of countries with the least reported rape cases.

Egypt stands second on the list with the rate of rape incidents at 0.10 per one lakh. South Africa ranks top with the highest rape rate at 132.40 per one lakh.

Citing Bangladesh and India's experiences, experts say there is no such evidence that proves that rape will stop if there is a provision in the law to give rapists the death sentence.

In 1995, three policemen were hanged to death in the Yesmin rape and murder case due to the countrywide movement, protesting the incident in Bangladesh. But rape has not stopped.

In India, after the Nirbhaya case in 2012, Nirbhaya, the female medical student, was brutally gang-raped on a bus in Delhi, people all over India demanded the death penalty for the rapists. Following this much-talked-about rape incident in India, death sentences on rapists were declared in 2013.

According to experts, nobody can claim that rape incidents in India have decreased after carrying out this punishment.  In India, 88 rape incidents take place on an average per day, and 30% of the incidents are brought to trial.

Referring to these issues, experts have given a mixed response, saying that it is not possible to prevent rape only by increasing the punishment. Such a crime is on the rise as the previous law provisions are not properly enforced.

They also called for speeding up the judiciary and ensuring its accountability, and disposing of cases quickly.

Dr Shahdeen Malik, a lawyer, told The Business Standard, "One thing is pervasive all over the world for centuries – the harsher the punishment is, the lower the conviction rate is,"

Less than 2% of the accused in the rape cases under the previous law had been convicted. With the promulgation of the new ordinance that will elevate the maximum punishment to death, it seems that it will not be possible even to ensure punishments to 0.2%.

"Under the existing Women and Children Repression Prevention Act, there are provisions of death penalty for more than a dozen crimes. Incorporating a new provision of death sentence for another crime will not bring any good results," he added.

The lawyer said, "When a death sentence is handed down in a judicial court, it goes to the Appellate Division. It is not settled though year after year goes by. On the other hand, the sentence of the accused is reduced in most cases in the High Court verdicts as the appeals remain pending for a long time."

He further said that if the government becomes sincere in implementing the existing law, crimes like rape will come down. But the government hardly shows any sign of that sincerity.

The government needs to focus on how to curb criminals' tendency to become reckless under political shelter.

Opposing Dr Shahdeen Malik, former law minister Shafique Ahmed told The Business Standard that the amendment to the law will bring much better results.

Stating the decision a timely one, he said if there is a provision of severe punishment for rape, criminals will not have courage to commit crimes.

The former law minister said that it is now being made mandatory to complete the trial of a rape case in a judicial court within 180 working days under the amended law. If justice is ensured very quickly in this way, the crime rate will be reduced to a great extent.

Welcoming the new provision, former adviser to the caretaker government Rasheda K Choudhury, said, "Although we do not support death penalty, the rate of criminal activities in the country has risen so much that there was no way out."

In addition to this, there will be no benefit if the investigation does not bring proper evidence to the court, expedite the judicial process, and ensure a trial free of political and economic influence.

"The death penalty will not bring an end to rape," Taslima Yasmin, an assistant professor at the law department of the Dhaka University, told The Business Standard.

"A comprehensive effort is needed to bring about a positive change in trials of rape cases and the present situation. We should have looked at where these trials get stuck in our judiciary and where there are flaws in the law."

Advocate Salma Ali, president at the Bangladesh National Women Lawyers' Association, told The Business Standard, "It is a political stand. We did not want such a strict provision to be made so soon. We think only awarding death penalty is not enough, we have to work to prevent rape."

She said if sexual harassment can be prevented, the number of rapes will also come down.

But despite having a High Court's directive to prevent sexual harassment, no law has been enacted in 11 years. The law has to be passed quickly and implemented, she also said.

"If we can stop teasing and stalking women on streets, in workplaces and educational institutions, the extent of rape incidents will also drop significantly," Salma Ali added.

Nur Khan Liton, a human rights activist and former executive director of Ain O Salish Kendra, said, "In our country, there are provisions of death penalty for various crimes under different laws. But, these crimes have not reduced, rather are on the rise. In this case too, I do not think that rape can be controlled by the provision of death sentence."

There is also no alternative to raising public awareness against rape. For this, the government should take necessary initiatives, said the human rights activist.

Law Minister Anisul Huq said despite lots of controversies over the death penalty across the globe, Prime Minister Sheikh Hasina thinks the punishment should be elevated, considering the situation. In this context, the changes have been brought to the act.

The old cases will be solved through due procedures on a priority basis while the latest ones at the earliest possible time, he added.

He said the chief justice will be requested to give a practice direction so that the judges concerned take appropriate steps to expedite the cases of the Women and Child Repression Prevention Tribunal.

On the other hand, the Ministry of Law will also direct the special public prosecutors of the tribunal to take immediate steps to dispose of the rape cases.