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Bangladesh: Supreme Court Rules Mandatory Death Sentences Unconstitutional

(May 20, 2015) On May 5, 2015, the Appellate Division of the Bangladesh Supreme Court declared sections 6(2), 6(3), and 6(4) of the Women and Children Repression (Special Provisions) Act, 1995 and section 34(2) of the Prevention of Oppression Against Women and Children Act, 2000 unconstitutional “because they prescribe a mandatory death penalty for the offence of causing death after rape.” (Mohammad Golam Sarwar, Unconstitutionality of Mandatory Death Penalty, DAILY STAR, (May 12, 2015); Women and Children Repression (Special Provisions) Act, 1995, Act No. 18 of 1995, BANGLADESH GAZETTE EXTRAORDINARY (July 17, 1995); Prevention of Oppression Against Women and Children Act 2000, Act No. 8 of 2000, International Knowledge Network of Women in Politics website.)

The crimes included under the above sections are murder of a woman or child using explosives, corrosive substances, or poison; dowry murder, in which a woman is killed by her husband or his family after suffering harassment or torture to extort a higher dowry; and murder following rape. (Both Life and Death Sentence Possible for Murder After Rape: Supreme Court, BDNEWS24 (May 5, 2015).) The Bangladesh Constitution states: “No person shall be deprived of life or personal liberty save in accordance with law.” (The Constitution of the People’s Republic of Bangladesh, art. 32, Legislative and Parliamentary Affairs Division website (last visited May 16, 2015).)

In 1995, in State v Sukur Ali (2004 (9) BLC 238 (HCD)), a 14-year-old boy was given a mandatory death sentence for the rape and murder of a 7-year-old girl, which was upheld by the High Court Division on March 2, 2010, on the grounds that “[n]o 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 the charge beyond reasonable doubt.” (Andrew Novak, The Abolition of the Mandatory Death Penalty in the Commonwealth: Recent Developments from India and Bangladesh, Selected Works of Andrew Novak website (last visited May 16, 2015) [click on “Download” to see full article].)

The Appellate Division of the Supreme Court of Bangladesh ruled on the mandatory death penalty provisions of the Women and Children Repression Act of 1995 and the Prevention of Oppression Against Women and Children Act of 2000, following an appeal filed by the Bangladesh Legal Aid and Services Trust in April 2010 challenging the High Court’s March 2010 verdict. (Bangladesh Legal Aid and Services Trust v Bangladesh 2010 (30) BLD 194 (HCD).)

The petitioners challenged the provisions in question for violating a number of articles of the Bangladesh Constitution, including article 7, the supremacy clause; article 26 on laws inconsistent with fundamental rights to be void; article 27 on equality before the law; article 31 on the right to equal protection of law; article 32 on right to life; and article 35 on the prohibition on cruel and degrading treatment or punishment. (Sarwar, supra.)

This landmark decision of the apex court of Bangladesh may make lawmakers more cautious about limiting the discretionary power of the judges through mandatory penal provisions. If a law provides for a mandatory punishment that provision could be seen as limiting the discretion of judges in awarding sentences and thus interfering with the administration of justice. (See discussions in Press Release, Bangladesh Legal Aid and Services Trust, Landmark Appellate Division Judgment Declaring Unconstitutional Mandatory Death Penalty Under Special Law on Violence Against Women and Children 1995 (May 5, 2015) & Sarwar, supra.)