Judicial attitude: reluctant or over enthusiastic?
In the matter of capital punishment, Bangladesh has often followed the lead of India and emerging majority of Commonwealth nations who are abolishing the mandatory death penalty for ordinary crimes. In a judicial proceeding, judges are in liberty to punish an offender of murder with the death penalty or life imprisonment, except where a murder was committed by a prisoner already serving life sentence and for an attempted murder committed by a person who is under sentence of imprisonment for life. But mandatory death penalty provision was retained in the Oppression of Women and Children (Special Provisions) Act, 1995. However, mandatory death penalty was repealed in 2000 but the repeal was not retroactive to persons already under death sentence in previous law. Mandatory death sentences are matter of grave concern as they deprive the judiciary of the discretion to consider extenuating circumstances relating to the crime or the accused. The injustice that can result from a mandatory death penalty is illustrated in the case of State vs. Shukur Ali, decided in 1995. Subsequently, the High Court Division of the Supreme Court of Bangladesh declared unconstitutional such a provision providing for a mandatory death sentence, which is already discussed in BLAST v Bangladesh (2010) (Case Study:1). But why the Judges are reluctant in sentencing mandatory death penalty? The answer of this question may be found from the judgment of this case. It is stated that:
“……any mandatory provision of law takes away the discretion of the court and precludes the court from coming to a decision which is based on the assessment of all the facts and circumstances surrounding any given offence of the offender, and that are not permissible under the constitution. The Court must always have the discretion to determine what punishment a transgressor deserves and to fix the appropriate sentence for the crime he is alleged to have committed.”
Though the judges have the discretion to punish an offender with death penalty or life sentence but many judges choose the sentence of death for crimes which they consider to be most heinous crime. In Bangladesh, the judiciary is enthusiasly punished the offender with death penalty who committed rape with murder, acid violence, murder of women and children. But considering some factors sometimes the judges are reluctant to death sentence. In Nalu v the State, the Appellate Division referred some mitigating circumstances which are extenuating ground for judges to punish the offender with alternative.
In Rokia Begum alias Rokeya Begum v The State (Case Study: 2), though the trial court convicted the accused with death penalty, the Appellate Division commute the sentence of death of Appellant Rokeya Begum to one of imprisonment life. In this case it appears to the Judges that there is no direct evidence against the Appellant of having taking any part in the killing of his own daughter and also the Appellant spent 11 years in the condemned cell is not due to any fault of the convict. Therefore, the judges are reluctant to provide death penalty where the period spent in condemned cell is inordinately long and it may be considered as an extenuating ground sufficient for commutation of sentence of death.
Sometimes the judges are over-enthusiasly prescribe death penalty. In sensational cases judges are driving by the emotion and pressure of society and media. In such case,s they do not consider the circumstances of the case carefully but to sentence death penalty to set an example for the society. In the State v Oyshee Rahman (Case Study:3) same incident was happened. The Speedy Trial Tribunal convicted Oyshee Rahman with death penalty. Then Oyshee file an Appeal to the High Court Division.The judges of the High court considering the fact and circumstances of the case commuted the death sentence to life imprisonment. Because, in view of the judges, Oishee had committed the double murder without any apparent motive and was suffering from ‘mental derailment’ or some sort of mental disorder and also from ovarian cyst and bronchial asthma. It is also mentioned that her paternal grandmother and maternal uncle had a history of psychiatric disorders. The verdict mentioned her age 19 when the murders took place in 2013, “just immediately after her attaining the majority” and she had no such significant history of prior criminal activity and surrendered to the police station soon after the occurrence willingly. Thus, after considering the age of the offender and circumstances of the case, Judges are reluctant in sentencing death penalty.
Sometimes, considering the convict’s tender age and family circumstances judges are reluctant to imposed death sentence upon the accused. But it’s not all rosy. Whether an offender is punished with death penalty or life imprisonment, is completely the discretion of the judges. Judgment may vary from judges to judges. Some judges are strictly or over enthusiticly punish the offender with death penalty and some judges are reluctant to award death penalty. In State v Mehadi Hasan alias Modern and others(Case Study:4), three young boys aged 19,19 and 20 years respectively chase the victim, Trisha (10 years old girl) and in order to escape from them, Frightened Trisha jumped into a pond and drowned. The High Court Division Confirmed the death sentence and held that:
The Villainy committed by convict-appellants is extremely shocking and it shocks judicial conscience. In such a shocking nature of felony it is necessary to impose maximum punishment which is death under the law as means of social necessity. Mere young age of convict-appellants cannot be a ground for desisting from imposing death penalty and cannot be termed as mitigating circumstances in imposing punishment and no mercy can be shown to the culprits who pollute the society.
In case of gender-based offence,s judges are enthusiastic to punish the offender with death penalty in order to set an example for the society and deter them from doing the same wrong. In Alam Uddin alias Shapan v State (Case Study: 5), the offender brutally murdered his wife for dowry. Therefore, the court did not commute the death penalty into life imprisonment, though the lawyer on behalf of the offender plea to consider the tender age of offender.
The Appellate Division observed that,
“It is a settled principle of law that the object of sentence should be to see that crime does not go unpunished and the society has the satisfaction that justice has been done and it will be a mockery of justice to permit the offender to escape the extreme penalty of law when faced with cruel act perpetrated by him and moreover to give lesser punishment to the offender who stood convicted in a shocking and revolting crime would render the Justice System of the country in question and to award inadequate sentence under sympathy would do harm to Justice System and would undermine public confidence in efficacy of law.”
When protector becomes predator, where does the common man go? The case of Md.Moynul Hoque v the State  (Case Study: 6) represents one of the most shameful events in Bangladesh’s history. Afterthe the investigation, Police officers are found guilty of rape and murder of a poor soul Yasmin. Though the counsel of the defense argues that, there is no eye-witness of the offence, but after analyzing the circumstantial evidence the Court award death sentence to the offender. By inflicting highest punishment to the offender (a Police Office), the Judiciary protect the faith of people on legal system.
Section 302 of the Penal Court authorizes the court to punish the offender either with death or imprisonment for life. The Statute provided discretion to the court. Generally Judges are reluctant to punish the offender with death penalty if the situation and circumstances do not demand so. Therefore, in State v Mir Hossain alias Mira & Others (Case Study: 7) the court held that, “It is always to be remembered that choice of maximum punishment, that is death, should be reserved for rarest of rare cases and, also, in cases of extreme depravity and criminality of the offender.”
The doctrine of “rarest of rare” case is introduced first in this sub-continent in India in case of Bacchan singh v state of Punjab. In Bangladesh, this doctrine is applied in several cases. Though there are no specific rules or regulations for sentencing death penalty, judiciary applied this doctrine as a hardcore principle in many cases recently. In State V Anowar Hossain Pintu alias Anowar Hossain & another (Case Study: 9), in this case one of the respondent is acquitted and the death penalty of another commuted to imprisonment for life. It is observed that, “Since this is not the rarest of the rare cases, the end of justice will be met if the sentence of death of the accused Kashem is converted into one of imprisonment for life” .Thus, if the case is not rarest of rare, the judges are reluctant to provide death penalty.
In cases where acid violence is concerned, judges seem over-enthusiastic to punish the offender with death penalty. In Md.Shakhowat Hossain v The State (Case Study: 9), the court imposes death penalty upon the offender for projecting acid on a girl who suffers bodily severely. This crime recognized is not only against the victim of crime, but also against the society. It was held that, “……..it was necessary to impose maximum punishment under the law as means of social necessity which would work as deterrent to other potential offender.”
Before the pronouncement of death sentence, the judges consider the mitigating or extenuating factor of the case. However, in several cases the court considers the fact of being hired killer as an aggravating factor. In State Vs Maku Rabi Das(Case Study: 10 ), the mastermind died during the trial but the High Court Division impose death penalty upon the offender Maku Rabi das. Though there is an option of alternative but the court enthusiasly award death sentence and observed that,
Such type of professional killer, who does not hesitate to take away life of another person in lieu of money, should not get any compassionate view in matter of awarding sentence.
After analyzing the case study, this paper identifies that judges convicts over-enthusiasly when the victims are female and judge are reluctant to death sentence when the convicts were not hardened criminal and they had dependants. In addition to these grounds the court also consider the tender age.
The present case study clearly indicates that, judges are generally reluctant to punish the offender with death penalty, if the offence does not fall in the “rarest of rare” case category. However, in a number of cases judges convicts if the offence is categorized asthe most serious crime such as rape, brutally murder, acid violence etc. Mainly judges exercise their discretion over-enthusiasly, if the crime is committed against the women and children. In such case the court deliver a harsh penalty/sentence to convey the message to society that crime does not go unpunished.
The judges who are not supporter of death penalty, they are likely reluctant to impose death penalty. Similarly judges who are against the abolition of death penalty may over-enthusiastic to punish the offender with death sentence. In absence of sentencing guidelines as well as sentence hearing, the judges often award the sentences mechanically in the exercise of their individual sense of yawning discretion. Consequently, diversity of sentencing decisions arises for similar category of offences. In practice, a wide range of mitigating and aggravating factors stemming from the case-laws, though not developed in a coherent fashion, essentially dominate the our sentencing practice. The problem arises when the judges are not always consistent in their philosophies on justification of punishment. Because in many cases it was observed that though the gravity of offence is similar, but in one case offender punish with death penalty, in another case with imprisonment for life. It transpires that judges are left with wide sentencing discretion. Therefore, the present study finds out that, there should be a standard guideline for judges to exercise their discretion in sentencing policy. In the State v Oyshee Rahman, the High Court Division also held that, Bangladesh is still not in the position to abolish the death penalty but it may consider introducing a guideline on what and how the sentencing system should be applied. Hence, in order to impose the sentence upon a perpetrator, if proved, there must be a guideline or rules as to how it can be imposed.
Jury plays a vital role in the criminal justice system in many countries of the world. Trial by jury is important in order to preserve individual freedom. The jury system plays a vital role in democracy and it also gives the layman a voice in the justice system. This paper opined that jury trial is necessary iforBangladesh; many developed countries already adopted jury trial in their legal system. In several cases judges over-enthusiasly punish the offender with death penalty, if the offence is involve with social pressure and emotion of public. In such cases if the Jury can directly involved, then the judges may wisely exercise their discretion after taken into consideration the decision of the layman.
The Legislature prescribes punishments in order to protect the society’s needs and prevalent norms and to prevent abhorrent behavior. In most countries around the world there is an official body which seeks to assimilate the situation within the society and, after assessing the same, directs various penal sanctions which may be prescribed for particular offences. Thus, if at any time a particular crime becomes prevalent in the society, it would be the duty of the Advisory Board to prescribe a sentence which will act as a deterrent against such a crime.This paper also focus the need of Advisory Board in Bangladesh, to give indication or direction to what punishment may be given for the broad terms of punishments prescribed in the Penal Code and other special laws.
The legal basis for judicial executions in international law is found in Article 6 of the ICCPR, which addresses the right to life. Paragraph 2 introduces the formulation “most serious crimes”:
In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime […].
In Bangladesh, the court does not abolish the death penalty but the judges are in favors of restriction in frequent exercise of death penalty. The present case studies indicate that, judges are exercising their sentencing power only to “rarest of rare “cases. But what constitutes rarest consideration, there is no clear or precise indication. Thus, there is a high probability of misunderstood the concept and which may cause different judgment in similar offences. This paper finds that the doctrine of “rarest of rare” should be use in uniformity.
However, the judges should not punish the offender enthusiasly. The court before awarding the offender death penalty must analyze the each and every aspects of the case and shall not provide death penalty in haste.
In the foregoing discussion, the attitude of judiciary in dealing with death penalty has been discussed in detail with a focus in particular on the reluctance or over-enthusiasm of judges to impose death sentence. In so doing, this research analyzed some landmark decisions of the court to find out the understanding of the court in dealing with capital punishment. The discussion has been made with reference to the relevant provisions of the Penal Code and Special penal laws and also the cases reported in major law reports of Bangladesh.
The social and cultural values prevailing in Bangladesh do not justify the abolition of death penalty. The judicial attitude of judges also in favors of death penalty but the judges exercise this discretion only in restricted area such as in case of heinous crime or where the victim is woman or children. Though the judges have discretion to impose death penalty because it is a general rule to punish the offender with death sentence and if the judges choose alternative he have to record the reason for it but in practice, there are several cases where judges are consider the mitigating factor and age of the offender.
However, the ultimate analysis of this paper is judges are mainly reluctant to punish the offender with death penalty and the recent practice of judiciary is to reserve the death penalty on “rarest of rare” case. If the offender has no prior criminal record or there is no possibility to commit further crime, the possibility of lenient punishment is increase.
In concluding remark, it emphasis that the suggestions are provide in this paper are not concrete solution of our criminal sentencing policy. This paper is thus, only attempt to analysis the judicial attitude of the court and judges in sentencing death penalty. In so doing, this paper find out that recent practice of judges are an attempt of introduction of new era. Because in several cases the higher court shown their reluctance to punish the offender with death penalty and the decision of the case are become the guideline and also followed in other cases to consider the mitigating factor.
Find out the discussed case analysis here: Analysis of major judicial decision in death sentencing policy in Bangladesh: Trends and Issues
 Section 303 of the Penal Code,1860.
 Section 307 of the Penal Code,1860.
 Oppression of Women and Chidren (Special Provisions) Act (1995),ss 4,6(2) and 10(1).
 30 BLD (HCD) 194.
 32 BLD (AD) 247.
 Such as the condemned prisoner has no history of prior criminal activity, the condemned prisoner is not likely to commit any further act of violence and delay of execution of death penalty.
 4 SCOB (2015) (AD )20.
 Ibid,Para 30.
 Abed Ali v The State,10 BLD(AD),89.
 24 BLD(HCD)(2004),497.
 Emphasis added.
 Para 104.
 62 DLR(AD)(2010),281.
 Para 6.
 24BLD(AD), 128.
 56 DLR(HCD) (2004), 124.
 Para 47.
(1980) 2 SCC 684. It was held that, the death penalty must be restricted to the “rarest of rare” cases.
 61 DLR (AD) (2009)
 Para 21.
 25 BLD (HCD)(2005),75.
 Para 39.
 58 DLR (2004), 229
 Para 26.
 Though there is no hard and fast rule to which case is “rarest of rare”. It is also depends on the nature of the crime and the discretion of judges whether the crime is rarest of rare or not.
 Our criminal justice system neither allows any separate sentence hearing nor does it invite any pre-sentence report on the background of the accused when the trial court pronounces its judgments. In Bangladesh there is no provision for any such pre-sentence report; however under Children Act 2013, s. 33, a Children Court is legally required to consider ‘social inquiry report’ on the background of the child while passing the sentence.
 According to Bagaric (199b:598), “absent an understanding of why sanction are imposed and what they seek to achieve, only sheer luck or incredible coincidence would produce an appropriate sentencing system.”`
 HCD (2015),SCOB.
 BLAST v Bangladesh (2010) 30 BLD (HCD) 194
 See Code of Criminal Procedure, 1898, Section 367(5).
 Blast V Bangladesh (2010) 30 BLD (HCD) 194. At the Appellate Division level the appeal of the High Court Division case brought by the BLAST on behalf of Sukur Ali was consolidate with ten other petitions of other prisoners serving mandatory death sentences.
 The State v Oyshee Rahman (HCD) (2015).