Bangladesh Legal Aid and Services Trust (BLAST) and another v. Bangladesh
Supreme Court of Bangladesh, High Court Division
Writ Petition No. 8283 of 2005
2 March 2010
International Covenant on Civil and Political Rights, Article 6
Universal Declaration of Human Rights, Article 5
Constitution of the People's Republic of Bangladesh (the "Constitution"), Article 32 ("no person shall be deprived of life or personal liberty save in accordance with law"); Article 35(3) ("every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law"); and Article 35(5) ("no person shall be subject to torture or to cruel, inhuman or degrading punishment or treatment").
Nari-o-Shishu Nirjatan (Bishesh bidhan) Ain, 1995 (Act No. XVIII of 1995)
Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003)
Children Act, 1974
In 1999, 14 year old Shukur Ali was charged with the rape and murder of a 7 year old female neighbour. Ali was tried and convicted under Section 6(2) of the Nari-o-Shishu Nirjatan (Bishesh bidhan) Ain 1995 ("the 1995 Ain"), which provides that any person convicted of causing death during or after the commission of rape must be sentenced to death; accordingly, Ali was sentenced to death. Although, it was noted that the representation provided by Ali's state-appointed defence lawyer at the initial trial was inadequate, the conviction and death sentence were upheld on appeal.
Prior to Ali's trial and conviction the 1995 Ain was replaced by the Nari-o-Shishu Nirjatan Daman Ain 2000 ("the 2000 Ain"), which gave the court the discretion to impose either the death sentence or a life sentence for such offences. However, it also provided that any offence committed under the 1995 Ain should be tried and convicted as though that legislation was still in place.
The current case is a challenge to the legality of the 1995 Ain filed by the non-governmental organisation Bangladesh Legal Aid and Services Trust ("BLAST") in the public interest, but it does not not reexamine the facts of Ali's criminal case. BLAST argued that a law which mandates that the death penalty is the only penalty for a certain crime (as was the case with Section 6(2) of the 1995 Ain) is unconstitutional because it compromises the judiciary's ability to decide on sentencing.
Issue and resolution:
Mandatory death penalty. Juvenile justice. Whether Section 6(2) of the 1995 Ain which provides for mandatory death penalty for a crime is constitutional. The Court ruled that such laws are unconstitutional and stayed the execution for two months.
The Court ultimately agreed with BLAST's contention that Section 6(2) of the 1995 Ain was inconsistent with several provisions of the Constitution.
It held that, whilst the death penalty itself was constitutional (which both sides conceded), any mandatory provision which removes the judiciary's discretion to come to a decision based on all the facts and circumstances surrounding any offence or the offender, including the offender's age and other mitigating circumstances or alternative sanctions, was prohibited by the Constitution. Therefore, Section 6(2) of the 1995 Ain and any other law that provides for mandatory death sentence was ultra vires the Constitution, meaning that it went beyond the scope of what is constitutionally permissible.
In reaching this conclusion, the Court considered the prohibition of cruel, inhuman or degrading punishment in Article 5 of the Universal Declaration of Human Rights and the right not to be arbitrarily deprived of one’s life in Article 6 of the International Covenant on Civil and Political Rights, reflected by Article 35 of the Constitution. BLAST submitted that in Bangladesh where domestic laws are unclear or silent, national courts are required to draw upon the principles incorporated in international provisions for guidance. Therefore, any inflexible death sentence prescribed by law must be considered arbitrary under the International Covenant, which Bangladesh has ratified, as it was a removal of the judiciary's power to decide by the legislature
BLAST further argued that, due to the replacement of the 1995 Ain with the 2000 Ain, Ali's sentencing was discriminatory as it treated him differently from offenders later charged with the same crime, and that the 1995 Ain was directly to contrary to Islam and the Holy Qur'an in that both held life as sacred, forbade the taking of life allowed forgiveness and encouraged compassion.
The Court also considered English, Indian and American case law in their judgment. In particular, a decision by the Privy Council which held that denying an offender "the opportunity, before sentence is passed, to seek to persuade the court in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity". The Court said that legislation providing mandatory sentences reduces the courts to a “rubberstamp of the legislature” and impedes the courts’ power to take into account all circumstances surrounding the offence when deciding on a sentence.
Therefore, mandatory death sentences were held unconstitutional because they take away the discretion of the court to assess all the facts and circumstances surrounding the offence and the offender. Although Section 6(2) of the 1995 Ain was ruled unlawful, the Court found that Ali’s detention was lawful as he was tried and convicted by a competent tribunal. Ali’s execution was stayed for two months to allow him to appeal his sentence in light of the Court’s finding that the law under which he was sentences is unconstitutional.
In 2015, the Appellate Division of the Supreme Court commuted Ali’s sentence to a sentence of life imprisonment. For full details about this case, read CRIN’s strategic litigation case study.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.