A capital crime may have been committed

This is what we know: It was a recorded telephone call. The caller is a male, and so is the recipient. The caller's tone is menacing and commanding, while the recipient sounds subservient. Being aware of the presence of a particular female on the recipient's side, the caller's focus changes. He speaks to the female. He accuses her of not responding to his calls. He then commands her to immediately make her way to a five-star hotel, where he is situated. He threatens to use the country's law enforcement agencies if she were to deviate from his commands. He lays his cards on the table: he is going to rape her that night. He gives chilling details of his intended sexual crime on her. She remains supremely dignified, utters a few disjointed nervous words, and then appears to fall into a terrified silence.

This telephone conversation reportedly took place approximately two years ago. It is not clear who recorded it or revealed the identities of the participants. However, the reliability of the recorded call and the identities of the parties involved are beyond doubt. Both recipients have confirmed its authenticity, and the caller has made no attempt to dispute his part.

We, therefore, know for sure that the caller at the time was a state minister of Bangladesh. The male recipient is an actor, the female is a well-known actor as well. Under the Penal Code of Bangladesh, the contents of the call disclosed a serious sexual offence and prelude to further serious sexual offences, requiring a thorough police investigation. It can be alleged that the state minister was the offender (hereinafter referred to as the alleged offender) and the female actor in question (hereinafter referred to as the victim) was undoubtedly at the receiving end of an appalling sex crime.

We also know that the offender, while a state minister, was a loose cannon. A few weeks earlier, he had made slanderous and degrading remarks about some female university students. Just before the recorded telephone call became public knowledge, he also made obscene and vile remarks about certain members of an opposition political family.

The prime minister of Bangladesh moved quickly. She forced the alleged offender to resign from his ministership. A high-ranking police officer announced that the matter would be investigated. This was followed by newspaper reports that the male recipient of the call had been questioned by police for over five hours, presumably as a witness to a crime. The victim was abroad on a pilgrimage at the time. She appeared on social media and seemed keen to cooperate with any investigations on her return. The law minister, who was instrumental in declaring rape as a capital offence in Bangladesh in 2020, told the press how appalled he was at the moral turpitude of the alleged offender while performing the duties of a state minister. Bangladeshis all over the world were expecting an imminent arrest and the beginning of the due process. But, alas, that was not to be.

There were growing speculations that the alleged offender, moving from five-star hotel to five-star hotel, was about to leave the country. The home minister felt that it was his duty to clear the air. Referring to the controversial Digital Security Act (DSA), he declared that the former state minister's utterances did not fall within the ambit of the legislation, and therefore he was free to leave the country if he so wished.

Within hours of the home minister's announcement, the alleged offender boarded a plane, heading towards Canada. On the plane, he posed for photos displaying a victory sign. Many interpreted that as a victory against the poorly administered rule of law in Bangladesh. However, the Canadian border authorities refused entry. It appears that he did not have the requisite Covid-19 papers. Within 72 hours of leaving the shores of the country, the alleged offender found himself back within the territorial jurisdiction of Bangladesh. The victim arrived from her pilgrimage a few days later. It does not appear that the police have any plans to question the alleged offender or the victim.

There are a number of reasons why the home minister should now reflect on his earlier decision, and acknowledge that a serious sexual offence may have been committed, requiring police investigation. A simple forensic analysis of the telephone call indicates that the victim had been avoiding contact with the alleged offender, due to fear and his sexual harassment. His menacing and commanding tone and expressed intention to use top law enforcement agencies show that there are no lengths that he would not go to, in order to fulfil his evil designs on the victim. It was petrifyingly clear that his was not an empty threat. Forensic psychologists would consider that such a sexual predator, wielding enormous powers as a state minister, would likely have multiple victims. Therefore, a police investigation would naturally flow from such telephone calls in any country that valued its rule of law.

Even if a police investigation concludes that the telephone conversation was an isolated incident, the call itself is sufficient evidence of an offence of threat to rape under the Penal Code, requiring the case to go before a competent court of law for its judgment. The Canadian Supreme Court case of R v Macraw (1991) is widely cited as authority for declaring that as rape amounts to sexual violence, rape threats should also be considered as threats of serious bodily harm under the Penal Code of common-law countries, of which Bangladesh is one.

The Bangladesh government needs to come to grips with its records on upholding the rule of law. The World Justice Project, in its recently published Rule of Law Index 2021, paints a dismal picture of Bangladesh. Among 139 countries, Bangladesh is ranked 124—just above countries such as Uganda, Zimbabwe and Myanmar. This case, in a small way, illustrates how Bangladesh loses the plot. While the state refuses to investigate an alleged offender for a serious sex offence on solid evidence, cases are being filed with courts all over the country under the DSA for his defamatory utterances, by people who have political or personal scores to settle, now that the former state minister has fallen from grace. It is evident that the rampant misuse of this particular legislation is instrumental in Bangladesh's sliding down in the Rule of Law Index. Ironically, in this particular case, it is unlikely that the legislation would be allowed to be misused, simply because most of those who are trying to settle scores are of a different political shade.

As things stand now, we have an alleged sex offender with solid evidence of his offence in public domain. Such evidence also indicates that he may have committed other grave offences. There is a victim ready to cooperate with police investigation. Will the home minister initiate the due process and allow the law enforcement agencies to investigate the crime, before the alleged offender tries to flee again? Will he rise to the challenge? It remains to be seen. But the law-abiding citizens of the country, probably, would not be holding their breaths!

Najrul Khasru is a Bangladeshi-British barrister and a part-time tribunal judge in England.