Once a person is sentenced with capital punishment, he has to be locked in solitary confinement for years and even decades. This procrastination imposes double punishment on death-sentenced prisoners, which is neither mandated by the law nor in any way dictated by the judge
The penal laws of Bangladesh have capital punishment for 33 offences. Once an accused is found guilty of those offences by the competent court, it can sentence him/her with a death penalty as the maximum punishment.
In our judicial procedure, curiously there are not sentencing guidelines, and hence, the pronouncement of capital punishment is largely predicated on the individual philosophy and intuition of the judges. Nevertheless, the accused has to be incarcerated in a dungeon until he is discharged by a competent court or the punishment is carried out. In Bangladesh, the lower court's verdict of the death sentence marginalises an accused as death-row prisoners though this verdict is reviewed more than three times by the higher courts in prolonged procedures. The death penalty may be commuted in any of the reviews, but the accused has to live as a death-row prisoner till the commutation.
There is not much academic or public discussion about the living standards and the portfolio of death-row prisoners in Bangladesh.
In this article, my endeavour will be to unveil an overall picture of the condition of death row prisoners in Bangladesh, which strongly demands a careful deliberation by society as well as the concerned state apparatus. The sources of my information are from various reports of the dailies, individual experiences, and recently a study "Living under sentence of death" by the Department of Law, University of Dhaka.
British India and afterwards Bangladesh inherited the penal laws from the British colonisers. The death penalty used to be carried out in the broad daylight in front of mass people until it was banned by the British colonisers in the nineteenth century. The concept behind the jail system was introduced to subdue the natives by the intrusive occupational rulers. Unfortunately, thenceforth Bangladesh did not appear to have modernised the custodian system of the judiciary in comparison to the upgradation of the British system in order to keep abreast of the demands of the modern era. If we draw the analogy, it appears that our judicial process, particularly death reference, has not yet introduced any sentencing guidelines, whereas England formed a sentencing council with the Sentencing Act, 2020, which is one of the many enactments formulated by the British government appertaining to the modus operandi of sentencing the accused in criminal cases.
In retrospect, capital punishment was introduced to bring a deterrent effect on the potential violent offenders. But in the present context of Bangladesh, in reality, whether someone is facing the gallows has no or little impact on our ultra-moving society. Our incumbent Hon’ble Chief Justice Syed Mahmud Hossain has rightly pointed out, “the hanging (execution of the death sentence) alone cannot protect the society."
The injustice of the death penalty system and its lack of fairness are often emanated from the procedural unlawfulness in deriving confession of the accused under Section 164 of the Code of Criminal Procedure. The investigation department has, in recent years, demonstrated a deplorable disposition to wash their hands off a case by impelling an accused to make a confessional statement under Section 164 and more often than not, such coercive confession turns out to be adequate enough by the trial courts to impose capital punishment. The courts often refuse to traverse beyond the mode of obtaining such confession and unwittingly pronounce the verdict on the basis of such confession and thus, a confession, obtained by means of threat, intimidation, or coercion plays vital role in securing the end of one’s life. Therefore, in my considerate opinion, the abolition of section 164 is a requirement of time now.
Once a person is sentenced with capital punishment, he has to be locked in solitary confinement for years and even decades. This procrastination imposes double punishment on death-sentenced prisoners, which is neither mandated by the law nor in any way dictated by the judge. So, this illegal prolonged solitary confinement for pursuing their legal appeals makes sharp deterioration in the physical and mental status of the death-row prisoners. Enforced idleness causes a variety of negative physical and psychological reactions like hypersensitivity to extreme stimuli, perceptual disorders, increased anxiety and nervousness, fear of persecution, self-destruction, cardiac arrest, dizziness, lower level of brain function, suicide, etc. The death-row prisoners are isolated in such a manner that constraints are imposed on visitation including the inability to ever touch friends or loved ones, even other prisoners inside the same jail. The condemned cells, where death-row prisoners are incarcerated, are designed to divest the accused from the sunshine, fresh air and socialisation with other prisoners.
According to reports of "living under sentence of death" - almost three-fourth quarters of the death-sentenced prisoners were below 30 years. A quarter was the sole earner for their families. As a result, the convict's family becomes predisposed to austerity and privation. The families also become subjected to social harassment by the populace around. Remarkably, the study reveals that most of the death-sentenced prisoners are from a very low educational background. There is also a popular belief that the death sentence is imposed only upon the poorest and powerless people.
A death-row prisoner is faced with innumerable daunting challenges. First, in a legal battle, it is almost impossible to conduct the case in person. Others have to represent the accused in legal management. Here, influence works as a magic bone to thwart the bail application of the accused. This is utterly preposterous! It is the failure of the state and the judiciary, not the accused person. Second, repression by the corruption-plagued jail officials adds further insult on the already inflicted injury of the accused. From the reports of dailies it evince that the inmates are tortured, discriminated, humiliated, deprived of human rights inside jails in the most brutal form. Third, it is very shocking and pathetic that almost all the death-row prisoners get abandoned by their families. Perhaps due to the socioeconomic conditions, the family members have no remaining alternative other than to jettison their loved ones. Fourth, after conviction, prisoners sometimes fail to manage a representative for the legal move. And it is also observed that senior criminal lawyers are seldom inclined to represent the poor convict. Even here, the economic condition of the convict plays a vital role on the rate of his case being successfully conducted.
Confessional, heat of the monumental, accidental and above all previous criminal records must be taken into consideration while delivering the death penalty. For the sake of deterrence, individual/general perception must be avoided in death reference. Bail should be the very first-hand step taken by the judicial process unless the same is injurious to public life. Ancient laws must be upgraded with the requirement of time.
Numerous international human rights treaties explicitly prohibit the government from subjecting any death row prisoner to cruel, inhumane, degrading treatment or punishment. Though the present government has increased infrastructure development in the jail, the reforms of jail operating procedures in tandem is unfailingly necessary. We must not restrict our focus on the crime which leads to a death sentence rather we must scrutinise on the involvement of the state and the society's responsibility and consider the prior criminal or delinquent records to deliver the verdict. According to the study report, almost all death row prisoners are first time trialled without having any prior criminal records, and it is thus illogical to deliver a capital punishment to a first-hand accused, specially since where we are not exactly living in a utopia.
With the span of time, our world is gradually moving towards a ‘no death penalty’ era. There is no dearth of countries, which have lately abolished the capital punishment. Death, the finality of it, requires fastidious care and attentive examination on evidence associated with the offence. In a country, where the method of accumulating evidence is not always unassailable, it seems imprudent and injudicious to confirm the death of a person, especially when he is restricted from extending his full-fledged support to the litigators. We must bear in mind the Blackstone’s ratio, “It is better that ten guilty persons escape than that one innocent suffer.”
Source: theindependentbd.com, M A Hossain, Opinion, September 29, 2021. The writer is an independent researcher based in Bangladesh.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
