In a landmark directive, the High Court has said the trial courts must hold separate hearings on sentencing in criminal cases.

The sentence in such a case must be pronounced at a later date.

The directive comes in the full text of a verdict, which observes that the number of death sentences at trial courts is rapidly increasing, and  the convicts have to suffer on death row for around six years, as they go through the appeal hearing process.

Legal experts believe these directives will significantly reduce the number of death and long-term imprisonment sentences awarded by trial courts.

Courts in Bangladesh do not hold hearings on sentencing. But it is practised in different countries so that punishments commensurate with the crimes. Legal systems in the US, the UK, and Australia follow methods that ensure consistency in sentencing.

Talking to this newspaper, criminal law expert Khurshid Alam Khan said the separate hearing on sentencing is definitely a positive step, and it would add a new dimension to the criminal justice system.

"However, I think a specific law or guideline must be formulated in this regard," he said.

Supreme Court lawyer Mohammad Shishir Manir, who moved at least 120 death sentence-related cases before the HC, said, "This is a landmark judgement for this subcontinent. If this judgement is implemented, there will be a sea change in the criminal justice delivery system in Bangladesh.

"We have analysed 200 criminal cases and found that only 20 percent of the death and long-term imprisonment sentences are upheld, 50 percent are commuted and 30 percent of the convicts get acquitted."

As of November 1 last year, there were 2,162 convicts on death row in prisons across the country, said a report submitted to the HC bench.

The verdict mentions that the Supreme Court registrar general must issue a circular directing the courts and tribunals across the country to comply with the directive on sentencing.

The HC also asked the authorities concerned to send a copy of the judgement to the law secretary, so that necessary actions are taken.

Specifying how judgements will be delivered, the verdict says when the final argument of the parties is concluded and the judge has decided to award death or life imprisonment or imprisonment for a term of years, the judge will express the decision in the open court or tribunal.

The judge will then fix a date, within the shortest possible time, for a separate hearing in order to determine the appropriate sentences.

The 84-page verdict by the HC bench of Justice Sheikh Hassan Arif and Justice Biswajit Debnath was released on Thursday.

"In such [sentencing] hearings, the trial judge shall balance between aggravating and mitigating circumstances with an eye on particular issues like the nature of sentence, circumstances of its commission, the age and character of the offender, the injury to the individuals or to the society, whether the offender is a habitual, casual or a professional offender, effect of punishment on the offender, delay in the trial and mental agony suffered by the offender during the prolonged trial…" reads the verdict.

The trial court judges must also consider the possibility of correction and reformation of the offender before pronouncing the judgements, it says.

"Taking away the life of an individual is a highly serious act and the courts of law are always reluctant to pass any such order, unless it is bound to do so by the Act of the Legislature."

Some countries have already abolished death sentences as the parties to a criminal proceeding are human beings. Humans are bound to make mistakes, and mistakes should not take away the life of an individual, it says.

"Indian Supreme Court in Bachan Singh vs. State of Punjab (1980) 2 SCC-684, which is widely known as Bachan Singh case, has already given some strict guidelines to be followed and has categorically declared that death sentence may only be given in 'rarest of rare cases'.

"Different benches of the Indian Supreme Court have also expressed their view to hold separate sentencing hearings on the ground that it would be fairer to the parties concerned, in particular the accused, and such hearing is necessary for balancing between aggravating and mitigating circumstances."

On February 28 this year, the HC bench pronounced the judgement in a case filed under the Women and Children Repression Prevention Act for the rape and murder of a third grader in Jashore in 2014.

The HC commuted the death sentence to life imprisonment for one convict and the other convict was already dead.

The full verdict released on Thursday mentions that the authorities concerned should immediately move the convict from death row to a general prison cell.

Law Minister Anisul Huq earlier said the government would formulate a uniform guideline to determine the types of sentences in criminal cases.

The High Court today (August 14, 2022) issued an injunction restraining the government from constructing houses under the Ashrayan Project at a historical playground in Netrokona's Kendua upazila for the next three months.

In response to a writ petition, the court also issued a rule asking the officials concerned to explain why the action of the deputy commissioner of Netrokona to change the class of the playground at Balaishimul mouza for constructing houses under the Ashrayan Project should not be declared illegal.

In the rule, the court asked them to show causes why they should not be ordered to protect and preserve the Balaishimul playground. 

At the same time, the HC ordered the DC of Netrokona to prepare a report on this issue and submit it before this court in 60 days.

The HC bench of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo issued the order and rule following a writ petition filed by Bangladesh Environmental Lawyers Association (Bela) Netrokona in this regard.

During the hearing, Deputy Attorney General Arobinda Kumar Roy vehemently opposed the writ petition saying that among the proposed 36 houses, only 12 will be constructed in the field.

The court then said changing the class of the field while a case is pending with a lower court on this issue is abuse of power.

Bela chief Syeda Rizwana Hasan told The Daily Star that the district administration of Netrokona has illegally and arbitrarily initiated to construct houses under the Ashrayan Project by changing the class of 0.46 acres of land of the playground out of total 1.80 acres, despite the locals repeatedly asking them not to.

Amidst much confusion as to whether Gonoforum-elect MPs would join sessions of the 11th parliament, Mr Sultan Mansur, the elected MP from Moulvibazar-2 constituency under Gonoforum's banner, finally took his oath as a member of parliament on March 7, 2019.

On the very same day, he was expelled from the party hours after taking oath, on the allegation that he violated his party decision of not joining the parliament. Referring to Article 70 of the Constitution, Attorney-General Advocate Mahbubey Alam commented to the media that the parliamentary membership of Sultan Mansur will stand as he neither resigned from the party nor voted against the party. Moreover, he is the only lawmaker from Gonoforum who has taken oath in parliament.

Professor Dr Ridwanul Hoque of Dhaka University, however, takes a different position and opines that the seat of Mr Mansur has become vacant in the parliament under Article 70. In response to a question by the Law Desk, The Daily Star, Professor Hoque said, "That Mr Mansur's decision to join parliament defying his party decision would not be affected by Article 70 is an interpretation that does not conform to the context and rationale of Article 70. His decision is nothing less than his resignation from the party. The very basis of Article 70 is to prevent horse-trading in the parliament, which has indeed occurred in this case though not in reference to a transaction in the House. The party which nominated Mr Mansur has expelled him, because of which the constitutional source of his being a member of parliament has been swept away. Article 70's scope is much wider than simply what is written under it."    

The rationale of Professor Hoque's statement can be found in the Bangladesh Constituent Assembly Members (Cessation of Membership) Order 1972. Considered as the predecessor document from which came the genesis of Article 70, the 1972 Order in its Article 3(ii) provides that a member of Constituent Assembly was to lose his membership if he was expelled by such political party, and he was to cease to be a member of the Assembly for the unexpired period of his term as such member.

It seems that in the Constitution there is no direct solution to this unique problem. That is why, if Gonoforum appeals to the Speaker for vacating the expelled leader Sultan Mansur's seat in the parliament under Article 70 of the Constitution, it would be a constitutional law issue—first-of-its-kind—in Bangladesh. According to Article 70, membership of a lawmaker will be vacated if he or she resigns from the party or votes in parliament against the party.

Constitutional law jurist Advocate Mahmudul Islam, in his book Constitutional Law of Bangladesh, writes that the term "resign" may have extended meaning. If someone joins the cabinet/ministry formed by one party after being elected on the nomination of another party, this may sometimes constitute resignation from the latter party under the interpretation of Article 70. However, in the case of Sultan Mansur, he has not resigned from the party; rather the party from which he got nomination has expelled him for defying party decision. The question now is: will Sultan Mansur lose his parliamentary membership for defying the party decision?

In this regard, Advocate Mahmudul Islam comments that violation of any direction of the party will not automatically lead to the vacation of a seat. So this would mean that, in the present context, Sultan Mansur will not lose membership in the parliament. The Constitution of Bangladesh rather contemplates the duty of each member to attend the sittings of the parliament and provides for vacation of seat for absence from parliament for a specified number of sitting days as referred to in Article 67(1)(b). Therefore, the interpretation of the constitutional provision does not facilitate a valid direction to refrain from attending the sittings of parliament.

Despite all sorts of interpretations and uncertainties, the unique case of Sultan Mansur's parliamentary membership deserves due course of action as mandated in the Constitution of Bangladesh. In an earlier event, in the seventh parliament, two persons were elected with the ticket of Bangladesh Nationalist Party (BNP) and they were appointed as ministers by the then ruling Awami League. They did not resign from BNP, but BNP wrote letters to Speaker Humayun Rashid Chowdhury requesting him to publish notification under rule 178 of the Rules of Procedure (RoP) stating that they vacated their seats as members of parliament as their conduct amounts to resignation from BNP. The Speaker refused to publish notification or to refer the matter to the Election Commission (EC). Rather he took the stand that there was no allegation of resignation or voting against BNP and as such there was no dispute to be referred to the EC under Article 66(4) of the Constitution.

Article 66(4) of the Constitution provides that if any dispute arises as to whether a member of parliament has, after his election, become subject to any form of disqualification mentioned in Article 66(2), or as to whether he should vacate his seat in line with Article 70, the dispute shall be referred to the EC to hear it, and the decision of the Commission would be final.

BNP leader Khandaker Delwar Hossain subsequently challenged the ruling of the Speaker in the Supreme Court of Bangladesh. The Court in this case observed that the facts and circumstances of the case disclosed a dispute regarding the alleged resignation of the two members and the EC is the authority designated by the Constitution to determine the question as to what is meant by resignation. Accordingly, the Court directed the Speaker to refer the matter to the EC.

As the experience of the aforesaid case suggests, the fate of Sultan Mansur's parliamentary membership now depends upon the ruling of the Speaker of the parliament who can only refer the case to the EC for a decision. If the case of Sultan Mansur is referred, the EC would be the ultimate authority to make a decision on this matter.

Mohamamd Golam Sarwar and Emraan Azad work for the Law Desk, The Daily Star.

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