In the criminal justice system of Bangladesh, while dealing with a number of cases, our courts often encounter serious challenges in doling out the capital punishment or life imprisonment.
In The State vs Bidhan Chandra Roy (2014) the High Court Division (HCD) of the Supreme Court of Bangladesh expressed that, “… in the sentencing process, two important factors come out which shall shape appropriate sentence: (i) Aggravating factor (ii) Mitigating factor.”
What exactly are these aggravating and mitigating factors?
In layman’s terms, these are the two factors which may influence the decision of a judge with regards to whether the court would award the death penalty or life imprisonment. Two recent judgments, namely the Rajon Murder Case and Oyshee Rahman Case, passed by the Supreme Court of Bangladesh, have brought the issue of capital punishment and imprisonment for life at the forefront again. In the cases where mitigating factors are present, the court may commute “a sentence of death to one of imprisonment for life on consideration of mitigating circumstances.”
So, what are these mitigating circumstances which can commute the death sentence and life imprisonment? Our criminal legislations devote less attention to factors which might mitigate a convict’s punishment, but our judiciary has often identified the specific factors which should result in lesser punishments.
In The State vs Md Masud Rana and Anr (2015), the HCD considered not taking any leading role in the killing and no past records of criminal activity as the mitigating circumstances. A similar view was also held by the Appellate Division in Rahmat Ali alias Shukkur vs The State (2013).
As a result of the following decisions, mitigating circumstances not enumerated in legislations are still available for the judge’s consideration. In The State vs Dr Md Nurul Islam (2014), and later inThe State and Ors vs Tahazzel Hossain Nura and Anr (2015), the division considered old age as the mitigating factor.
How can we measure the gravity of an offense? Our criminal legislation has not identified any specific factors which should result in harsher punishments
No clear rules
Since there is no exclusive list of mitigating factors that must be considered by the judges, hence, oftentimes, inconsistency is evident in their judicial attitude. Here, it is important to emphasise one of the recent judgments made by the HCD in The State vs Oyshee Rahman (2015).
In this case, several categories of mitigating circumstances were addressed by the HCD for which death sentence can be commuted to life imprisonment: The mental and physical health of the convict, the psychological history of the convict’s family, and the fact that she willingly surrendered.
In Md Yahia and others vs The State, the division stated: “Sentence to be awarded should be proportionate to the gravity of the offense.” But how can we measure the gravity of an offense? Our criminal legislation has not identified any specific factors which should result in harsher punishments. However, our judiciary has identified few aggravating circumstances to measure the gravity. So, what are these aggravating circumstances which support death sentence?
In The State vs Md Fazlur Rahman Tonmoy (2009), and later in Shahid and Ors vs The State (2015), the division considered brutality, cold-bloodedness, and the gruesome nature of the murder as the aggravating factors which justified a death sentence.
It’s no surprise that “brutality” and “cold-bloodedness” are considered aggravating factors in many cases. Under Section 367 (5), a judge has to explain why the eventual sentence is appropriate. This is where aggravating and mitigating factors play a role, particularly in terms of making the choice between capital punishment and life imprisonment for offences under Section 302 of the penal code.
But what factors should be considered as aggravating and mitigating still remains a mystery.
Sadiya S Silvee is a Research Assistant at Bangladesh Institute of Law and International affairs (BILIA) and is also associated with the Centre for International Sustainable Development Law (CISDL) as a Legal Researcher.