Need for Sentencing Guidelines in Bangladesh
If an accused either pleads guilty or is found guilty by the court, he becomes an offender and is sentenced by the court. Generally, a criminal trial ends with a conviction or acquittal of an accused. In conviction, a sentence by way of a punishment is imposed by the court upon an offender. Statutes dealing with criminal law, such as the Penal Code 1860 (the "Code"), generally contain punitive sentences. Provisions containing punitive sentences often provide a minimum and maximum sentence that the court may impose for the concerned violation of the law. In addition, the types of punishments that could be imposed by a competent court have been prescribed under Section 53 of the Code, namely the death penalty, imprisonment for life, imprisonment (rigorous or simple) for a specified term, forfeiture of property, and fine.
Courts deliberate over the facts of the case and decide the appropriate sentence based on the harm done to the victim and how much responsibility the offender carries for the crime. It is generally expected that the more serious the offence, the more severe the sentence. The courts may also consider aggravating and/or mitigating factors to measure the seriousness of the offence and sentence accordingly.
One of the aims of sentencing is to punish the offender for the crime he/she has committed as well as to instill within the wrongdoer the realisation that he/she has perpetrated a mischief which is not only harmful to the society of which he forms a part but is also detrimental to his own future. There are other critical objects such as preventing crime from happening in the future and to protect more people from falling prey to the same offender.
However, no single authoritative instrument is in place to determine the most appropriate sentences in Bangladesh. Therefore, there is a wide scope for a judge to exercise discretion within the statutory limits. This is even more so because there may be a significant difference between the maximum and minimum sentences. Since there is no sentencing guideline, the sentencing realm can also be dominated by the individual philosophy and intuition of the judges. As a result, there is lack of uniformity. In the case of Rokia Begum v. The State, 13 ADC (2016) 311 (the "Rokia Begum Case"), the Apex Court held that "[i]n Bangladesh there is no specific authority to issue any sentencing guideline and as a result Judges are guided only by the sentences provided in the Penal Code and other special laws … [a]s a result the sentencing in most cases is arbitrary and there is no scope for the accused to plead for a lesser sentence or for the trial judge to take into account any mitigating circumstances since there was no opportunity to place any before him". Accordingly, there lies a huge inconsistency and disparity while deciding the punishment and awarding a sentence for a particular offence.
Apart from the above, it is not clear as to how the legislature frames a quantum of punishment while drafting any law. There does not seem to be a perspicuous process in place, trailing which the legislature differentiates a certain range of offences to be more serious in nature from other range of offences and imposes more severe punishment. This creates a chasm of anomaly, uncertainty and unpredictability in ensuring proper and/or proportionate punishment. For example, Section 124A of the Code deals with the offence of sedition for which 3 (three) alternative punishments have been provided. The said punishments are imprisonment which may extend to a term for life or imprisonment for three years (fine may be added to both the imprisonments) or fine only. In such a case, one may ponder over what could possibly be the basis of awarding the appropriate punishment.
The penal laws of Bangladesh have been, and indeed largely are today, colonial holdovers as they were introduced during British colonisation and the underlying basis is still very much a creation of the British colonisers. However, the sentencing system in Bangladesh does not appear to have modernised the way the English legal regime has over the years. The policymakers in England and Wales have enacted several legislations, formed a sentencing council with the Sentencing Act 2020 being the latest development. However, we are yet to incorporate our own exegesis to the sentencing regime considering the socio-legal environment of our country.
The Appellate Division clearly held in BLAST and others vs. Bangladesh, 12 ADC (2015) 245 that sentencing an offender is an important branch of the law. Furthermore, upon analysing the Rokia Begum Case, one cannot help but feel that the Apex Court does not appreciate the absence of sentencing guidelines in Bangladesh. Accordingly, this nihility requires urgent attention and redressal, by the introduction of offence-specific sentencing guidelines in Bangladesh with a view to creating a system of uniform and proportionate sentencing which will impose similar sentences for similar conduct and different sentences for different conduct. This is a must for a just society in order to protect the rights of both the victim and the convict. It will also go a long way to establish the fairness in judicial proceedings that our Constitution promises.
The writer is an Advocate and Associate of Sattar & Co.