Revisiting mandatory death penalty case
RECENTLY, the Appellate Division of the Supreme Court has been reported to declare section 6(2) (3) (4) of the Nari O Shishu Nirjaton (Bisesh Bidhan) Ain, 1995 (the Ain of 1995) and section 34(2) of the Nari o Shishu Nirjaton (Bisesh Bidhan) Ain, 2000 unconstitutional. According to news reports, the aforesaid provisions have been held unconstitutional because they provide for mandatory death penalty as punishment for the offence of causing death after rape.
It may be recalled that section 6(2) of the Ain of 1995 was first held unconstitutional by the High Court Division in Bangladesh Legal Aid and Services Trust (BLAST) and Another v Bangladesh represented by the Secretary, Ministry of Home Affairs and Others [2011] 63 DLR 10. Pending availability of the judgment of the Appellate Division, it will be worth taking a fresh look at the judgment of the High Court Division.
The material facts of the case is Md. Shukur Ali was convicted of rape and murder and was eventually sentenced to death under section 6(2) of the Ain of 1995. At the time of trial, Md. Shukur Ali was a minor. The petitioners filed a writ petition impugning, inter alia, section 6(2) of the Ain of 1995 primarily on the grounds that it provides for mandatory death penalty which is repugnant to the Constitution.
In this case, the petitioners' first submission (which actually comprises three propositions) was that any laws providing for capital punishment if enacted before the Constitution's coming into force would be valid. And, if the laws which have been enacted after the Constitution's coming into force provide for capital punishment would be unconstitutional.
However, in any of the aforesaid cases, the provision of mandatory death penalty would be unconstitutional. The aforesaid submission was mainly built on a combined reading of Articles 26, 32 and 35 of the Constitution. Relying on Article 35(5) of the Constitution – which provides that no person should be subjected to torture or to cruel, inhuman, or degrading punishment or treatment – the petitioners construed death penalty as a cruel and inhuman punishment. The petitioners' argument about validity of the pre-constitutional laws providing for death penalty derived from Article 35(6) which provides that the operation of any existing law which prescribed any punishment or procedure for trial should not be affected. In addition, referring to Article 26(1) & (2), the petitioners sought to vindicate the arguments that all lex lata and lex ferenda providing for mandatory death penalty would be repugnant to the Constitution and therefore, section 6(2) of the Ain of 1995 would be void.
The petitioners, furthermore, submitted that any provision of mandatory death penalty was arbitrary for the reason that it curtailed the discretionary power of the court in adjudicating cases and therefore, would be repugnant to Part VI of the Constitution. The petitioners quoted from the Universal Declaration of Human Right (UDHR), 1948 and the International Covenant on Civil and Political Rights (ICCPR), 1966 as well as cited foreign case laws in support of both of the submissions.
The High Court Division dismissed the first two propositions of the first submission on the grounds that if death penalty is not allowed to be incorporated in the post-constitution laws, there would be discrimination in regard to treatment of offenders under the new laws as compared to those dealt with under the earlier laws. However, the High Court Division appreciated the second submission by noting that the provision of mandatory punishment would render the court into a simple rubberstamp of the legislature. The High Court Division observed that any provision of mandatory punishment would result in prejudicing the court's power of adjudication since the court would be prevented from considering the attenuating factors and compulsorily impose the mandatory punishment upon finding the accused guilty.
Accordingly, the High Court Division concluded that the court should not be bereft of its discretionary power to determine appropriate punishment for any given crime. The High Court Division decided that any provision of law which provided for a mandatory death penalty would be unconstitutional and accordingly held section 6(2) of the Ain of 1995 repugnant (paragraphs 38, 42 & 45). The reasoning that mandatory death penalty is unconstitutional because it curtails the discretion is clearly the ratio decidendi of this case.
The High Court Division's decision in this case deserves some discussion. For example, it appears from the reasoning of this case that section 6(2) of the Ain of 1995 (provision of mandatory death penalty) was held inconsistent with Part VI of the Constitution ('Judiciary'), and not with Part III ('Fundamental Rights'). Had the opposite been done, alternative sentencing would have been recognised as a fundamental right of the convicted persons.
The High Court Division did not specifically point out which particular provision of the Constitution invests her with 'mandatory power of judicial discretion' in determining the degree and amount of sentence and how it is in conflict with a mandatory sentencing provision of law. If mandatory death penalty is unconstitutional because it limits the court's judicial discretion, all other mandatory penalties should accordingly be unconstitutional for similar reason although the court did not elaborate on this aspect anywhere in its judgment. Although in the final sense, the ratio of this case strictly involves aspects relating to functions of the judiciary or judicial independence, the decision, nevertheless, carries a strong human rights message which we are eagerly waiting to see to be capitalised.
The writer is an Advocate, Supreme Court of Bangladesh.
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