On November 20, 2022, the government introduced the long-awaited Evidence (Amendment) Act, signifying their commitment to address contemporary challenges and meet society's evolving needs, but certain persistent minor issues in the act remain unaddressed.
Key takeaways:
- Bangladesh’s Evidence Law underwent a significant amendment, embracing digital records and omitting character evidence.
- The amendment recognizes digital evidence’s relevance and necessitates specialized experts for handling such matters.
- Advocacy efforts led to the removal of a provision enabling character scrutiny in rape cases.
- However, challenges remain, including inconsistent application of judicial discretion and addressing colonial-era provisions.
- Proactive steps, collaboration, and research are essential to ensure a robust, modernized evidence law framework.
In Bangladesh, from an early age, children begin to grasp the concept of evidence through their interactions and disputes with their peers, demanding “shakkhi or proman“ (witness or proof) to support claims made by others. This fundamental understanding carries over to formal settings, where the law of evidence plays a crucial role in guiding judicial bodies, operating within the “veil of ignorance”, as they strive for justice, fairness, and equity by relying solely on the presented facts and arguments. Consequently, both civil litigation and criminal cases require the rule of evidence, allowing the trier of fact to make informed decisions based on the evidence provided.
Contrary to common misconceptions, there was indeed a judicial system in the pre-colonial Bangla-Indo-Pak subcontinent. In ancient times, the emphasis was on Dharma, and legal sources such as the Vedas, Smritis, and customary laws formed the basis of the legal framework. The consultation of Brahmins by the king and the prevalence of the jury system highlights the significance of justice. Both so-called divine and human proofs were taken into account during legal proceedings.
During the medieval period under the Mughal rule, the administration of justice was guided by Islamic principles. Criminal law applied to non-Muslims, while civil matters had their own separate legal system. The authority of the Shahanshah (emperor) was supreme, and judges and jurists played crucial roles in the judicial system.
With the advent of the East India Company and subsequent Crown Rule, the company gained administrative and judicial powers. English laws were introduced, and the Indian Evidence Act of 1872 completely replaced certain aspects of Muslim law. This act became the first particular codified law on evidence in the entire subcontinent.
The development of evidence law throughout history, influenced by cultural, religious, and colonial factors, persisted even after Bangladesh gained independence in 1971; however, only a minor amendment in 1973 replaced certain names to reflect the new nation, but substantial changes were lacking. As a result, the law couldn’t keep pace with evolving socio-cultural, economic, and technological demands. However, on August 31, 2022, the government introduced the Evidence (Amendment) Bill, signifying their commitment to address contemporary challenges and meet society’s evolving needs. The amended law, effective from November 20, 2022, brought significant changes, including 24 modifications: 8 section amendments, 15 new sections, and 1 section replacement, demonstrating the government’s dedication to adapting the evidence law to current realities.
The amendment can be divided into TWO
Admissibility of Digital Records
Given the government’s declaration of Bangladesh as ‘Digital Bangladesh’ and its efforts to transform the vision of a ‘Smart Bangladesh‘ by 2041, it is imperative for the state to establish a digital judiciary capable of handling digital matters. This includes enabling access to and trial of digital evidence, aligning with the country’s digital initiatives.
The amendment of section 3 of the Act includes the introduction of digital records as documents and incorporates the term ‘digital‘ in the definition of evidence. Additionally, the terms ‘digital signature,’ ‘digital signature certificate,’ and ‘certifying authority’ are newly defined in section 3. The amendment also introduces section 22A, which addresses the relevance of oral admission regarding digital content. It states that unless the genuineness of the digital record is in question, oral admission is considered irrelevant.
The amendment to section 3 not only introduces digital records but also incorporates materials or objects, such as blood, semen, DNA, fingerprints, and other similar substances. These materials can play a crucial role in establishing the commission of an offense, establishing connections between an offense and its victim or offender, and serving as physical or forensic evidence to prove or disprove facts.
Preceding Judgments Influencing Digital Evidence
In Bangladesh, being a common law country, it is crucial to recognize that judgments delivered by either division of the Supreme Court carry binding authority; as the provisions stipulated in Article 111 of the Constitution. Consequently, the High Court has granted specific exceptions for the utilization of digital evidence, taking into account the guidelines specified in section 45 of the Evidence Act, 1872. This section acknowledges the relevance of expert opinions from individuals possessing specialized knowledge in foreign law, science, art, or matters related to handwriting or finger impressions when forming opinions on such subjects.
A significant milestone in the judicial history of the country was the acceptance of recording evidence on magnetic tapes, as witnessed in the case of Mrs. Khaleda Akter VS State well before the amendment of the Evidence Act. Similarly, video footage was admitted as evidence in the Biswajit murder case, indicating an increasing recognition of the validity of digital evidence. Furthermore, in the Razu murder case at the Sylhet Metropolitan Judge Court, a mobile video played a vital role as evidence, expanding the interpretation of the definition of “Document” in the Evidence Act, 1872. However, it is important to note that the Biswajit murder case encountered challenges in authenticating the evidence presented in court. Additionally, in the Sagar-Runi murder case, allegations arose regarding the negligent destruction of evidence by journalists in the course of their professional duties.
Though some legal experts may argue that the amendment of the act regarding digital evidence was unnecessary or overly extensive, it can also be asserted that codified laws backed by precedents can bring about only advantages and apparently pose no harm.
Digital Record Admissibility: Addressing Shortcomings
In a blog post for Dhaka Law Review, Mr. Quazi Mahfujul Hoque Supan, Associate Professor at the Department of Law, University of Dhaka, acknowledges the presence of a forensic lab in the CID branch of Bangladesh Police, indicating that it is not entirely accurate to claim a complete absence of facilities or experts in the context of digital evidence handling. However, a significant issue arises as the experts often face frequent transfers, leading to under-utilization of their expertise. Many Thanas (police stations) in Bangladesh lack experts to handle digital evidence-related matters. To address this, there should be dedicated and specific posts for these experts in both Thanas and Courts, with provisions that allow transfers only within those specific roles if required by the authorities.
Recognizing the importance of addressing all the mentioned issues, it was imperative for the Drafting Committee to remain vigilant also about the rapid advancements in AI technology. Emerging technologies like deep fake pose significant challenges, requiring a highly skilled team of proficient and professional experts to effectively authenticate digital video evidence in court.
To adequately prepare for the upcoming era of the fourth industrial revolution in the courtroom, a collaborative effort that combines the expertise of ICT specialists, lawmakers, and law professors should be organized. Failing to do so may lead to numerous cases resulting in judicial miscarriages.
Removal of Provisions related to Character Evidence
The Evidence Act of 1872 plays a central role in determining the admissibility of evidence in court proceedings. Section 155 within the Act outlined four distinct situations that could cast doubt on the credibility of a witness. One notable scenario was covered under Section 155(4), which permitted evidence to be presented indicating the complainant’s general moral character in cases of rape or attempted ravishment. However, the lack of a clear definition for “generally immoral character” left room for interpretation, leading to concerns about how this provision might be utilized.
Section 155(4) had created a negative presumption about rape complainants. The ambiguity in defining “generally immoral character” allowed defense lawyers to subject rape complainants to moral scrutiny, leading to potential biases in the courtroom. This raised concerns about the fairness of proceedings and the treatment of vulnerable witnesses.
Struggles and Advocacy to Revoke Section 155(4)
Bangladesh Legal Aid and Services Trust (BLAST) conducted advocacy and research to highlight the use of character evidence in rape trials. They published the report “Shotir-e Kebol Dhorshon Hoi“ in 2015 and submitted reform proposals to lawmakers various times from 2013 to 2020, urging the repeal of Section 155(4) in the Evidence Act. The efforts gained support from stakeholders and organizations like the Rape Law Reform Coalition, seeking to improve justice in rape cases.
In 2021, after the initial waves of the pandemic, the feminist platform ‘Shekol Bhangar Podojatra,’ along with other esteemed figures including the organizer Prapti Taposhi, a student of JU, and barrister Sara Hossain, intensified their protest by organizing a midnight march in the capital. One of their main objectives was to amend section 155(4) to ensure fair and equitable trials without any form of moral policing.
Legislature Takes Action
Historically, the current ruling party of Bangladesh, the Awami League, has been a staunch opponent of oppression and colonialism, actively leading the fight for our independence; demonstrating a firm commitment to women’s empowerment, the legislature introduced and passed the Evidence (Amendment) Bill, aiming to rectify limitations in the law that could be reflective of colonial-era practices of tyrannized women justice seekers.
Persistent Confusion Surrounding Some Issues
In the 2022 amendment, Section 155(4) was omitted, and Section 146(3) was substituted with two provisos, which prima facie offer protection to the victim from unwarranted character assassination in the form of jiggery-pokery character evidence. However, the second proviso allows judges to grant permission to lawyers to inquire during cross-examination about the general immoral character or previous sexual behavior of the victim if it serves the ends of justice.
Both the CPC and CrPC grant Courts inherent power, allowing Judges to act upon discretion for the sake of ends of justice. However, the term ‘ends of justice‘ lacks a fixed definition, necessitating the inclusion of codified rules in the amended act. Law gurus have ample precedents to draw appropriate jurisprudence and incorporate the required provisions specifically for these types of cases. However, it is essential for the Law Ministry, Legislature, and drafting committees to first initiate a program of codification to implement these reforms effectively.
In many instances, the amendment has mirrored the Indian amendment, which can be considered ancient compared to the fast pace of technological advancement. However, a dissimilarity regarding mirroring can be observed in the matter of Section 11, which allows facts not otherwise relevant to become relevant if they conflict with any fact in issue or relevant fact. By drawing inspiration from the Indian amendment, the inclusion of a well-considered proviso, similar to the concept of “ends of justice” concerning the admissibility of character evidence, could have effectively resolved the issue at hand.
Other Limitations of the Amendment
While the government is proactive in amending colonial provisions that perpetuate oppression, the lack of attention leads to overlooking the removal of the colonial hangover entirely. Section 82, dealing with the recognition of English and Irish public documents in Bangladesh, is virtually obsolete since we are no longer part of the British Empire!
The multitude of sections 5-55, addressing the relevancy of evidence could have been efficiently consolidated into a single comprehensive section, making all evidence relevant, while explicitly excluding certain types, such as character evidence. This would streamline the law and reduce the long list of cumbersome sections in both practice and academia.
Despite the recent amendment, some more certain persistent minor issues in the act remain unaddressed. To rectify these and all the above-mentioned issues and ensure the law is well-equipped to meet the challenges of the modern era, the Law Commission, Law Ministry, and legislature should take proactive steps. Establishing a research committee comprising lawyers, judges, law professors, and experts in medicine, forensic science, technology, and communication would be crucial. While the committee might require sufficient preparation time, the resulting amendments should ensure the law remains effective in addressing the ever-changing landscape of science, technology, and the fast-paced socio-economic and cultural needs of the post-modern era.
About the Author
Fahim Shihab Reywaj, a law student at the University of Dhaka, who expresses himself through debating, writing, and poems; a strong advocate of our national liberation struggle and aspires to achieve the fundamental aim declared in the preamble of our constitution. Often introduces himself by saying, ‘too human to be a seagull.’
Cover Photo taken from Live Law.
2 comments
What is the legal status of email communication under the prevailing law of country?
Section 2(9) of the Information & Communication Technology Act, 2006 recognizes and defines ‘electronic mail.’ The evidentiary value of emails is delineated in the amended Evidence Act under Section 3, where ’email’ is encompassed within the broader definition of “Digital record” or “electronic record.” However, it is imperative to note that the authenticity of emails may undergo rigorous scrutiny in practical application; for example – according to Section 88A, the court is empowered to presume that the message received by the intended recipient through email is identical to the one initially entered into the sender’s device. However, it is crucial to note that the court is not permitted to make assumptions regarding the identity of the precise individual who sent the message.
In the context of civil law, particularly in contractual matters, emails are widely acknowledged as valid instruments for establishing a contractual relationship. Conversely, in criminal law scenarios such as offenses related to disinformation, blackmail, or threats communicated via email, the legal framework is governed by the Cyber Security Act.