Influence of colonialism in criminal sentencing

Professor Werner F. Menski, in the foreword of the book “Criminal Sentencing in Bangladesh: From Colonial Legacies to Modernity”, describes it as a “splendid book” which is a “highly significant contribution to the ongoing global debates.” Although Professor Menski cautiously approaches the author’s argument for locating debates on sentencing within highly diversified contextual domains, he lauds the methodological approach as it seeks to honour the principle that “the punishment should fit the crime.”

Authored by Professor Dr. Muhammad Mahbubur Rahman of Dhaka University, the book examines the sentencing policies of Bangladesh - a major non-Western, post-colonial jurisdiction. The author undertakes a deep examination of criminal sentencing, which is a major public law policy for practical applications. The findings of the examination are then interpreted within the purview of larger social, political and legal viewpoints of the country. The author describes the term ‘sentencing policies’ in the book primarily as “the laws and the jurisprudence of the higher courts of Bangladesh that shape the normative framework within which criminal sentencing takes place.” However, he clarifies that the research has not been confined to only an institutional understanding of sentencing policies. The study shows that policies not mentioned in law or jurisprudence but in action not only influence but also take over as a dominant factor.

This book demonstrates that criminal sentencing in Bangladesh is still tainted with the shades of the colonial past - it is seen by policy makers as an instrument of coercive authority rather than public policy. Dr. Mahbub argues that the sentencing policies in the country have not been developed in a consistent fashion; rather they are a part of the problem. He substantiates this contention through the examination of relevant laws, jurisprudence of the higher courts and a case study.

The book is divided into seven coherent chapters. The first chapter deals with an introduction to the field of study and how to incorporate it in the broader academic and country specific perspective. Chapter 2 starts with the discussion on criminalisation and the power and extent of the State to criminalise. In this part, the author discusses the various schools of thoughts that have developed regarding this issue. The chapter then discusses the various theories of punishment and the debates on the quantum of punishment. Lastly it discusses various forms of punishment.

The next chapter brings forward the historical background on the sentencing policy of Bangladesh and provides the background to the next two chapters. Chapter 4 discusses the sentencing policy of independent Bangladesh and how the volatile political climate influenced the policymakers at different periods of time. In chapter 5, the legal framework of sentencing policies is interrogated. The chapter discusses the provisions on death penalty and mandatory death sentence provisions.

Chapter 6 undertakes a case study of reported judgments by the High Court Division (HCD) in murder cases under Section 302 of the Penal Code, 1860. The author clarifies that the scope of the study has been kept limited for “better concentration and comparison in determining the consequences of sentencing policies on sentencing practices in Bangladesh.” The study also tries to see if there is any bias involved in the sentencing. The cases under study have therefore been classified as per variables such as gender, religion, presence or absence of eye witnesses, delay in execution and legal representation and consequently on whether death penalty was imposed. The chapter also discusses the normative guidelines and the history of amendments as regards to sentencing for murder. The study finds that not all Judges apply the doctrine of ‘rarest of rare cases’ while handing out death penalty. It concludes that there is no consistent pattern in death sentencing.

In the concluding chapter, the author reiterates strongly how the field of sentencing is largely neglected in policy debates in the country and how reforms need to be brought about for better coherence as well as contextualised rationality.

In his book, the author seeks to show that non-western societies, most of the times neglected in the field, can provide valuable theoretical and empirical data with possibilities of furthering the studies on sentencing. The indigenous philosophies of these societies on justice and punishment, the author states, “that are not identical with Western philosophies supply rationality to Western policies and thoughts on sentencing.” This book is a valuable resource for academicians, judges, prosecutors and defense lawyers as well as the students of law, history and criminology.

The writer is a student of Law, University of Dhaka.