Evidence (amended)act 2022: A promise to true e-judiciary

We often say that the law is blind. What's the use of blaming the law if we keep it blindfolded?We are in the age of free-flow of information, and watching, and knowing everything happening even in the farthest corner of the globe in no time. Evidences of every crime comes in our palms straightaway but still a criminal may  certified by the court an innocent while an immaculate may sentenced to death despite the real fact airs in the wind. This is because of the limitation of existing Evidence Act that was formulated 150 years back by the then British government.

According to the Interpol, Bangladesh may be able to assist with specific measures targeting digital evidence as a member of the Commonwealth's Harare Scheme 1986. And the government finally has taken the matter into account as the Cabinet Division recently approved the final draft of the Evidence (Amendment) Act, 2022, which will allow admissibility to the digital evidences before the court. It means Bangladesh is going to penetrate in the true e-judiciary arena.

Before gazing to the facts, let's get acquainted the term 'digital evidence'.As legal Jargon 'digital evidence' refers to the electronic records and digital data to be admissible in court. According to the Digital Security Act 2018, "data storage" means information, knowledge, event, basic conceptor guideline presented as text, image, audio or video format which is being or has been processed by any computer or computer system or computer network in a formal way; and has been processed for use in any computer or computer system or computer network".

The ICT ACT 2006 is more specific to define 'electronic evidences' where, "electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated microfiche or similar device or technology; and "electronic record" means data, record or data generated, image or sound stored,received or sent in an electronic form or microfilm or computer generated microfiche.

E-evidence however, has been made admissible in Bangladesh by some laws enacted in recent decades but all of these are 'special legislations'. Section 16 of the Speedy Trial Tribunal Act, 2002; section 87 of the Information and Communication Technology Act, 2006; section 21 of the Anti-Terrorism Act, 2009; section 6 of the Pornography Control Act, 2012 and section 58 of the Digital Security Act, 2019 ensure admissibility of the electronic evidences before the court. But what will happen to other thousands of Civil and Criminal proceedings?

Citing the example of Bangabandhu murder case, Cabinet Secretary Khandker Anwarul Islam, during a recent press briefing said that there was video evidence of murderers but it could not be used against them.

Despite such limitation, thanks to the High Court for allowing digital evidences in some special cases with reference to the section 45 of the Evidence Act, 1872 which enumerates that, "when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity hand writing or finger impressions, the opinions upon that pointof persons specially skilled in such foreign law, science or art, or in questions as to identity handwriting or finger impressions are relevant facts."

In Mrs. Khaleda Akter VS State, the court accepted recording evidences on magnetic tapes, is a milestone in the country's judicial history. The court also accepted the video footage of Biswajit murder case in producing verdict.

Still almost every frequent it is seen that rapists record video during committing heinous crime and post it on social media platforms. They can do this because they know that this video will not be accepted as an evidence during judicial hearing. The Evidence (Amendment) Act, 2022 therefore, will bring such brutal criminals under established legal jurisdiction. The murderers of Khadija, Tonu, Abrar and Rifat thereby, must not go unpunished.

Another drawback and possibly the most mortifying one of the Evidence Act, 1872 is that it allows investigation officers, lawyers and others related to the prosecution to raise question about the character of the accused even before being proved by the court.

All human rights organizations in the country therefore, have long been demanding the repeal of the section 53, section146 (3), section 150 and section 155(4) of the age old Evidence Act, 1872. Section 146 (3) of the said law states, "to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture", which raising questions over the character of a witness or victim.Section 150 strengthen the chastening prosecution further as it implies, "If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any [Advocate], report the circumstances of the case to the [High Court Division] or other authority to which such[Advocate] is subject in the exercise of his profession".

Copand the advocates against the plaintiff thereafter, ask anything about the character and the past life of a victim and try to prove the accused innocent by means of proving that the incident took place as s/he is not of a good character. Besides, the arguments by inspection team especially in a rape case, very often discourages victims to put a complaint against rapists and offenders. Salute to the High Court for banning the so-called two-finger test and the indecent hymen inspection of a rape victim.

Besides, section 155(4) of the said act states, "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character" while section 53 says, "In criminal proceedings the fact that the person accused is of a good character is relevant". These provisions are subject to criticism for a long time especially in the cases related to violence against women where victim's character is dissected, which is further humiliation for a rape victim or adds insult to the injury of a traumatized woman.

The Evidence (Amendment) Act, 2022 is going to be the safe-guard in such cases as the act is going to keep a provision that no question can be asked about the character of victim without the permission of the court.

Alongside such blessing, the digital evidence can be a big challenge in establishing the rule of law as because when it comes to admitting digital and photographic evidence into a courtroom, there are four criteria each piece of evidence must meet: accuracy, authenticity, originality, and relevancy. But records can be altered, manipulated or damaged; the computer programmes that might generate the record may be questioned; the identity of the author may be a matter of dispute as hackers or proxy browser can disguise them easily to victimize others, electronic devices can be damaged at any time or can be lost and in such cases the party introducing the evidence may fail to prove that others might have access to a device elsewhere and it's hardly will be possible to prove that the message or picture or other offensive contents were not conveyed by that particular person.

Among other loopholes, terrorists now a days are using highly sophisticated technology to carry out attacks. To bring them under the judicial measures even stronger and technically sound team and technology is a must.

Couple of more questions are taking the writers to a labyrinth. The first one is, how digital evidences will be applied in case of 'shopbook exception' ? And the other is, if the computer forensic department officials leak out or manipulate the evidences, what will happen to them? Hope, the law about to be enacted must carry the answers although the Cabinet Secretary said, "If anyone twists evidence, the persons will be dealt with as per section 211 of the Penal Code or section 57 of the Digital Security Act."

Above and beyond, the section 44 of the Constitution defends the privacy of every citizen in the country while The Digital Security Act is another safeguarding law for data privacy. So, further clarification in the amended Evidence Act is needed to mitigate the contradiction with above said laws.
The writer is a journalist, the Daily Observer and law student