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ABSTRACT
In May 2015, the Bangladesh Supreme Court’s Appellate Division invalidated the mandatory death penalty for a specific form of aggravated murder. The Appellate Division confirmed a broad Commonwealth consensus that the mandatory death penalty constitutes cruel and degrading punishment, citing jurisprudence from the United States, the English-speaking Caribbean, East Africa, Singapore and India. Although the decision followed the majority rule in the common law world, it is unlikely to transform Bangladesh’s capital punishment regime due to the country’s professed exceptionalism as it pertains to political crimes, such as the alleged war crimes carried out during the War of Independence with West Pakistan in 1971. Nonetheless, invalidation of the mandatory death penalty accords with international human rights norms and asserts the independence of the judiciary in relation to criminal sentencing matters.
Notes
1 Bangladesh Legal Aid and Services Trust (BLAST) v Bangladesh 1 SCOB [2015] AD 1 (Bangladesh Supreme Court, Appellate Division). Specifically, the Court found that the mandatory death penalty violated the right of equality in art 27; the right to be free from detrimental action against life or liberty except in accordance with law in art 31; the right to be free from deprivation of life or liberty except in accordance with law in art 32; and the right to be free from cruel, inhuman, or degrading punishment in art 35(5). See Constitution of the People’s Republic of Bangladesh.
2 Reyes v Queen [2002] UKPC 11 (Privy Council) (appeal from Belize); Queen v Hughes [2002] UKPC 12 (appeal from St Lucia); Fox v Queen [2002] UKPC 13 (appeal from St Kitts and Nevis); Balson v State [2005] UKPC 2 (appeal from Dominica); Coard v Attorney General [2007] UKPC 7 (appeal from Grenada); Bowe v Queen [2006] UKPC 10 (appeal from the Bahamas); Watson v Queen [2004] UKPC 34 (appeal from Jamaica); Kafantayeni v Attorney General [2007] MWHC 1 (Malawi High Court); Kigula v Attorney General [2009] 2 LRC 168 (Supreme Court of Uganda); Mutiso v Republic [2011] 1 LRC 691 (Court of Appeal of Kenya); Indian Harm Reduction Network v Union of India 2012 Bom CR (Cri) 121 (Bombay High Court); State of Punjab v Dalbir Singh AIR 2012 SC 1040 (Supreme Court of India).
3 International Covenant on Civil and Political Rights (ICCPR), art 6(2), opened for signature on 19 December 1966, 999 UNTS 85 (entered into force on 23 March 1976) (restricting the death penalty to the ‘most serious crimes’); Draft General Comment No 36 on Article 6: Right to Life, United Nations Human Rights Committee, CCPR/C/GC/R 36/Rev 2 (2 September 2015) (holding that the mandatory death penalty violates art 6(2) of the ICCPR).
4 Geert-Jan Alexander Knoops, An Introduction to the Law of International Criminal Tribunals: A Comparative Study (2nd edn, Martinus Nijhoff 2014) 23–24.
5 ibid; Human Rights Watch, Ignoring Executions and Torture: Impunity for Bangladesh’s Security Forces (Human Rights Watch 2009) 9 <https://www.hrw.org/sites/default/files/reports/bangladesh0509web.pdf> accessed 8 May 2016.
6 Mathias Holvoet and Paul de Hert, ‘International Criminal Law as Global Law: An Assessment of the Hybrid Tribunals’ (2012) 17 Tilburg Law Review 228, 239–40 (summarizing criticisms of the ICT); MD Saidul Islam, ‘Minority Islam in Muslim Majority Bangladesh: The Violent Road to a New Brand of Secularism’ (2011) 31 Journal of Muslim Minority Affairs 125, 129–32 (describing selective nature of prosecutions); Knoops (n 4) 24 (on retroactive application of the death penalty).
7 David Skuy, ‘Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century’ (1998) 32 Modern Asian Studies 513, 518–20, 526–27.
8 ibid.
9 International Federation for Human Rights, Bangladesh: Criminal Justice Through the Prism of Capital Punishment and the Fight Against Terrorism (FIDH 2010) 13–14.
10 ibid 26.
11 BLAST v Bangladesh (2010) 30 BLD (HCD) 194 (Bangladesh Supreme Court, High Court Division).
12 Oppression of Women and Children (Special Provisions) Act (1995), ss 4, 6(2), and 10(1).
13 See Penal Code 1860, ss 303 (murder by life-term prisoner), and 307 (attempted murder by life-term prisoner).
14 See State v Sukur Ali (2004) 9 BLC (HCD) 238, 250.
15 BLAST v Bangladesh (2010) 30 BLD (HCD) 194 [34].
16 Ridwanul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in Sunil Khilnani and others (eds), Comparative Constitutionalism in South Asia (OUP 2013) 303, 325.
17 In total, the case included eleven petitioners under sentence of death: Sukur Ali (Civil Appeal 116/2010); Razu Ahmed (Jail Petition 8/2010); Nazrul Islam (Jail Petition 3/2009); Masuk Mia (Jail Petition 18/2008); Abdul Kader (Jail Petition 16/2010); Akidul Islam (Jail Petition 2/2011); Mohammed Babul Mia (Jail Petition 3/2011); Shafiqul Islam (Criminal Petition 374/2011); Abdul Rashid (Jail Petition 1/2010); Idris Sheikh (Jail Petitions 5/2012 and 7/2012); and Shahjahan Haider Kutti (Jail Petition 8/2012).
18 BLAST (High Court Division) (n 11) 29–30.
19 ibid 32.
20 ibid 32–34.
21 ibid 10, 20–21, 28; BLAST (Appellate Division) (n 1) 38–53. See also Andrew Novak, ‘The Abolition of the Mandatory Death Penalty in India and Bangladesh: A Comparative Commonwealth Perspective’ (2015) 28 Pacific McGeorge Global Business and Development Law Journal 227, 245.
22 BLAST (Appellate Division) (n 1) 7–8.
23 ibid 8.
24 ibid 41.
25 428 US 280 (1976).
26 BLAST (Appellate Division) (n 1) 39–41.
27 Reyes (n 2).
28 BLAST (Appellate Division) (n 1) 45.
29 ibid.
30 ibid 47–50, citing Fox (n 2); Bowe (n 2); Coard (n 2).
31 Kigula (n 2).
32 BLAST (Appellate Division) (n 1) 51–52, citing Kigula (n 2).
33 Bangladesh Constitution, art 32.
34 Constitution of India 1950, art 21.
35 See eg Bangladesh Constitution, art 103(2)(b); Constitution of India, arts 72, 134.
36 Constitution of the Republic of Singapore 1965, art 9(1); Yong Vui Kong v Public Prosecutor [2010] 3 SLR 491 (Singapore Court of Appeal).
37 Constitution of the Republic of South Africa, 1996, s 11.
38 S v Makwanyane and Another [1995] ZACC 3 (Constitutional Court of South Africa).
39 Bangladesh Constitution, art 35(5). However, the Supreme Court of India has found a prohibition of torture and degrading punishment in the right to life and equality provisions: Mullin v Union Territory of Delhi AIR 1981 SC 746 (SCI); A Mark Weisburd, ‘Customary International Law and Torture: The Case of India’ (2001) 2 Chicago Journal of International Law 81, 83–84.
40 The constitutions of most former British colonies contain a right to life with a death penalty savings clause and a prohibition on cruel and degrading punishment, provisions which are found in the original European Convention on Human Rights (ECHR), which applied to all British colonies when it entered into force in 1953. Jennifer Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa (WW Norton 2001) 161; William Dale, ‘The Making and Remaking of Commonwealth Constitutions’ (1993) 42 International and Comparative Law Quarterly 67. India’s independence came too early to benefit from the application of the ECHR, but nearly all postcolonial constitutions (important exceptions including Malaysia and Singapore) contain both clauses.
41 Anwar Hussain Chowdhury v Bangladesh 1989 BLD (Spl) 1, citing Kesavananda Bharati v State of Kerala 1973 (4) SCR 225 (SCI). The Chowdhury decision invalidated the Eighth Amendment to the Constitution of Bangladesh, which attempted to divide the nationwide jurisdiction of the High Court Division into districts in a likely attempt to manipulate the judiciary. The decision was the ‘boldest ever instance of judicial activism in pursuit of constitutionalism in the Bangladeshi polity’: Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing 2011) 115. The doctrine is now entrenched in the constitutional law not only of India and Bangladesh, but also of Nepal. In addition, the highest courts of Pakistan and Sri Lanka have come close to embracing the doctrine as well: ibid 117–18 fn 98. On 5 August 2015, an eight-member plurality of the Supreme Court of Pakistan held that the ‘basic structures’ doctrine prevented Parliament from amending the ‘salient features’ of Pakistan’s Constitution, namely the provisions pertaining to democracy, judicial independence, and parliamentary form of government. Four judges dissented, holding that the ‘basic structure’ doctrine was an aggrandisement of judicial power, while five other judges accepted limits on Parliament’s power to amend the Constitution but without endorsing the ‘basic structure’ doctrine: Constitutional Petition No 12/2010 (5 August 2015) (Supreme Court of Pakistan); Majid Rizvi, ‘South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine’ International Journal of Constitutional Law Blog, 5 September 2015 <http://www.iconnectblog.com/2015/09/south-asian-constitutional-convergence-revisited-pakistan-and-the-basic-structure-doctrine> accessed 8 May 2016.
42 See e.g. State v Pinto (2009) 29 BLD (AD) 73 (finding that the case was not among the ‘rarest of the rare’).
43 AIR 1983 SC 473 (SCI). This language closely parallels the language of Mithu. See BLAST (High Court Division) (n 11) 29–30. The Indian Supreme Court accepted a separation of powers challenge to the mandatory death penalty:
The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.
44 BLAST (Appellate Division) (n 1) 16.
45 ibid 17.
46 ibid 32.
47 See Md Awal Hossain Mollah, ‘Judiciary and Good Governance in Bangladesh’ (2008) 15 South Asian Survey 245, 260–61.
48 Hoque (n 41). Hoque writes that since 1990, the Bangladeshi judiciary has ‘invalidated countless preventive detention orders’, though it has stopped short of declaring the underlying legal framework unconstitutional: ibid 121. During the periods of military rule, however, the judiciary ‘abdicated its constitutional responsibility’ and ‘largely became a partner of the usurpers of the Constitution’: ibid 106. See also Ridwanul Hoque, ‘The Recent Emergency and the Politics of the Judiciary in Bangladesh’ (2009) 2 National University of Juridical Sciences Law Review 183, 201.
49 BLAST (Appellate Division) (n 1) 70.
50 ibid 19.
51 ibid 25.
52 ibid 56.
53 ibid 57.
54 ibid 67. As noted above (n 17), the case included eleven consolidated claims in total, including a civil appeal (BLAST on behalf of Sukur Ali), nine jail petitions, and one criminal appeal, all concerning prisoners under mandatory sentence of death. The jail petition of Akidul Islam (Jail Petition 2/2011) was commuted to life imprisonment. Three others were held for subsequent proceedings: Abdul Rashid (Jail Petition 1/2010); Idris Sheikh (Jail Petitions 5/2012 and 7/2012); and Shahjahan Haider Kutti (Jail Petition 8/2012).
55 ibid 69.
56 Press Release, Bangladesh Legal Aid and Services Trust, 3 August 2015, <http://www.blast.org.bd/content/pressrelease/03-08-2015-press-release-Juvenile-Offender-Shukur-Ali.pdf> accessed 8 May 2016.
57 For instance, the Uganda litigation resulted in the resentencing of 417 death row inmates. In Jamaica, 38 prisoners were resentenced after the mandatory death penalty was found unconstitutional. Malawi had about 200. See Sandra Babcock and Ellen Wight McLaughlin, ‘Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v Attorney General’ in Peter Hodgkinson (ed), Capital Punishment: New Perspectives (Ashgate 2013) 181, 185, 189.
58 For more on the ‘sharing’ of death penalty jurisprudence, see Paolo G Carozza, ‘My Friend Is a Stranger: The Death Penalty and the Global Ius Commune of Human Rights’ (2003) 81 Texas Law Review 1031, 1036.