Capital punishment in Bangladesh

Capital punishment in Bangladesh is a legal form of punishment[1] for anyone who is over 16, however in practice will not apply to people under 18.[2] Crimes that are currently punishable by death in Bangladesh are set out in the Penal Code 1860.[3] These include waging war against Bangladesh, abetting mutiny, giving false evidence upon which an innocent person suffers death, murder, assisted suicide of a child, attempted murder of a child, and kidnapping.[4] The Code of Criminal Procedure 1898 provides that "he be hanged by the neck until he is dead."[5] For murder cases, the Appellate Division requires trial courts to weigh aggravating and mitigating factors to determine whether the death penalty is warranted.[6]

The Constitution of Bangladesh does not anywhere expressly recognise International Human Rights law, although some articles recognise international human rights. Article 25 of the Constitution recognises the United Nations Charter. Article 47 recognises international humanitarian law and provides that the Constitution will not limit the application of international treaties and the law of war.[7]

A person can receive the death penalty if they are found guilty of crimes against women and children. The Women and Children Repression Prevention Act 2000 provides that the death penalty can be imposed for murder or attempted murder involving burning, poison, or acid.[8] Causing grievous bodily harm by burning, poison or acid, if the victim's eyesight, hearing, face, breasts or reproductive organs are damaged.[9] Therefore, criminals in Bangladesh can be sentenced to death for attempted crimes and causing grievous bodily harm.

A number of offences (crimes not result in death) are punishable by death when committed by armed forces personnel. These offences include, providing aid to the enemy, cowardice and desertion and inducement to such and cowardly use of a flag of truce or any act calculated to imperil Bangladesh.[10]

According to the World Coalition Against the Death Penalty, Bangladesh carried out six executions in 2017.[11]

Executions

Since 2000, 11 people have been executed in Bangladesh, the most recent one being of Abdul Gafur on 1 November 2020, for murder.

International human rights law

Bangladesh was created as a consequence of human rights abuses.[12] When the Awami League won Pakistan's first election in 1970, the Pakistani Army brutally suppressed the Bengali people in East Pakistan. More than three million people were left dead, millions of women were raped, tens of millions of people were forced into extremely dirty and unpleasant refugee camps in India.[12] After India briefly invaded, Bangladesh was free from the brutality of Pakistani rule but faced a difficult task of rebuilding a country that was already desperately poor and prone to natural disasters.[12] To this day, Amnesty International believes Bangladesh is still wracked with human rights violations.[12]

The People’s Republic of Bangladesh has ratified some International Human Rights Treaties.[13] However, the government has registered some declarations and reservations to particular articles of certain treaties. One reservation of particular importance is the reservation to Article 14 paragraph 1 of the Convention Against Torture (CAT).[14] The reservation grounds were that Bangladesh would apply it "in consonance with the existing laws and legislation of the country."[15]

Bangladesh has not yet ratified or acceded to a number of International Human Rights Treaties. The International Covenant on Civil and Political Rights: 1976 was ratified in 2000.[16] However, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) have not yet been ratified.[17] The Second Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty: 1991 has also not yet been ratified.[17]

The Human Rights Council under the Universal Periodic Review reviewed Bangladesh in 2009. A strong recommendation was made for the abolition of the death penalty.[18] The Bangladesh government in response to this said: “The death penalty is maintained in Bangladesh only as an exemplary punishment for heinous crimes such as throwing of acid, acts of terrorism, planned murder, trafficking of drugs, rape, abduction of women and children. Both the judiciary and administration deal with these cases of capital punishment with extreme caution and compassion, and such punishment is extended only in ultimate cases that relates to gross violation of human rights of the victims. Bangladesh has an extremely low rate of implementation of such death penalties.”[19]

The fact that a very wide range of crimes are punishable by death potentially conflicts with Bangladesh's International obligations. Allowing the death penalty for crimes such as kidnapping or drug trafficking is contrary to the ICCPR's mandate which states that the death penalty should only be applied in the most serious of cases.[14]

Mandatory death sentences

The Women and Children Repressive Prevention Act 2000 provides that the punishment required for a person who causes death for dowry is a mandatory death sentence. This therefore means there is no other alternative punishment available and the jury are deprived the ability to apply discretion to certain circumstances relating to the crime or the accused.

State v Shukar Ali

This case is an example of the potentially unjust outcomes that can result from mandatory death sentences. On 12 July 2001, Shukar Ali, a 14-year-old boy who was convicted of sexually assaulting a 7-year-old girl which resulted in her death. At the time, the summer of 1999, Ali lived with his mother and elder sister in the slums of western Bangladesh’s Manikganj District.[20] He was not in a financial position to afford legal assistance , so he was appointed a defence lawyer by the State. This was not standard practice, however in this case was necessary because of the severity of the punishment that Ali would face if found guilty.[20] Ali was sentenced by the High Court Division to death by hanging under section 6 of an earlier version of the Women and Children Repressive Prevention Act, 1995.[21] The court compelled they were compelled to make this decision regardless of his age. The court held "no alternative punishment has been provided for the offence that the condemned prisoner has been charged and we are left with no other discretion but to maintain the sentence if we believe that the prosecution has been able to prove beyond reasonable doubt. This is a case, which may be taken as "hard cases make bad laws".[22] On appeal, the Appellate Division commuted Ali's death sentence to life imprisonment for "until natural death". This was the first time the Supreme Court of Bangladesh has ever overturned a decision.[20] The criminal law in Bangladesh has advanced significantly since Ali was first imprisoned. A law was introduced prohibiting the death penalty and life imprisonment for children. However, children are still held to be criminally responsible at the age of nine.

On 16 May 2010, the High Court Division of the Supreme Court of Bangladesh declared that sections 6(2), 6(3), and 6(4) of the Women and Children Repressive Prevention (Special Provision) Act, 1995 unconstitutional.[23] The court held that regardless of the offence, legislation may not provide that mandatory death sentences are the only available punishment.[14] The judge held, "A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions [sic]. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void."[24]

International Crimes Tribunal (Bangladesh)

The International Crimes Tribunal (Bangladesh) (ICT of Bangladesh) is a domestic war tribunal in Bangladesh, which was set up to investigate and prosecute suspects for the genocide committed in 1971 by the Pakistan Army during the Bangladesh Liberation War.[25] The first person to be convicted in the Tribunal was Abul Kalam Azad, who had left the country and was not present for his trial. He was sentenced to death in 2013. The United Nations offered its support in 2009 to make sure that similar mistakes made by other Crimes tribunals were not made in Bangladesh. The head of the United Nations in Bangladesh said "this is the first time Bangladesh is conducting war crimes tribunals and it is important it understands how other countries have held them. There are some countries where mistakes were made and we don't want Bangladesh to repeat those mistakes."[26] However, there has been a shift since the commencement of the trials because there is concern the International Crimes Tribunal are not carrying out their obligations under Bangladesh's international human rights obligations, International Criminal law, and the Bangladesh Constitution.[27] Bangladesh is a State party to the ICCPR, therefore they have an obligation to meet the key provisions. Especially the provisions regarding fair trials and the rights of accused persons.[27]

References
  1. /"Death Penalty | Amnesty International". Amnesty.org. 15 March 2014. Retrieved 2015-11-22.
  2. ["Bangladesh". The Death Penalty Worldwide database. Center for International Human Rights, Northwestern University School of Law. Retrieved 22 November 2013.]
  3. Penal Code 1860, s.121, s.132, s.302, s.305.
  4. Bangladesh:Criminal justice through the prism of capital punishment and the fight against terrorism
  5. Code of Criminal Procedure 1898, s 368.
  6. file:///Users/claudialeighs/Downloads/The_Mandatory_Death_Penalty_in_India_and_Bangladesh_stamped.pdf
  7. The Constitution of the People's Republic of Bangladesh, arts. 25, 47, 4 November 1972.
  8. Women and Children Repression Prevention Act 2000, section 4.
  9. Women and Children Repression Prevention Act 2000, section 4(2).
  10. "The death penalty and the "most serious crimes"" (PDF). Retrieved 10 January 2020.
  11. "Facts and figures". Retrieved 10 January 2020.
  12. "Bangladesh". Amnesty International USA. Retrieved 17 July 2019.
  13. "United Nations Treaty Collection". treaties.un.org. Retrieved 24 July 2019.
  14. "Criminal justice through the prism of capital punishment and the fight against terrorism" (PDF). Retrieved 10 January 2020.
  15. visit www2.ohchr.org/english/law/cat-reserve.htm.
  16. "- OHCHR Dashboard". indicators.ohchr.org. Retrieved 17 July 2019.
  17. "- OHCHR Dashboard". indicators.ohchr.org. Retrieved 17 June 2019.
  18. Human Rights Council, Report of the Working Group on the Universal Periodic Review: Bangladesh’. UN Doc A/HRC/11/18. 5 October 2009.
  19. Human Rights Council, Report of the Working Group on the Universal Periodic Review: Bangladesh, Addendum’ UN Doc A/HCR/11/18/Add.1, 9 June 2009, 4, Recommendation 19.
  20. "CRIN". CRIN. Retrieved 29 May 2019.
  21. The Women and Children Repressive Prevention Act 1995
  22. State vs Sukur Ali [9 (2004) BLC (HCD) 238].
  23. Writ Petition No. 8283 of 2005. BLAST vs State (Not yet reported).
  24. Sukur Ali, Bangladesh Legal Aid and Services Trust and others v. The State, pp. 60–61, Civil Appeal No. 116 of 2010 with Criminal Petition for Leave to Appeal No. 374 of 2011, Supreme Court of Bangladesh, 5 May 2015.
  25. Wierda, Marieke; Anthony Triolo (31 May 2012). Luc Reydams, Jan Wouters, Cedric Ryngaert, ed. International Prosecutors. Oxford University Press. p. 169. ISBN 978-0199554294.
  26. "UN to help Bangladesh war crimes trial planning". DAWN.COM. 8 April 2009. Retrieved 29 May 2019.
  27. "Letter to the Bangladesh Prime Minister regarding the International Crimes (Tribunals) Act". Human Rights Watch. 18 May 2011. Retrieved 29 May 2019.
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