The crucial need for sentencing guidelines

The criminal justice system of our country is primarily regulated by the Code of Criminal Procedure 1898 (CrPC). From initiation of a case i.e., lodging of the First Information Report to the conclusion of the trial, the judges must comply with the provisions of this code. The Penal Code 1860, on the other hand, defines certain acts as criminal offences and prescribes punishment for them. Generally, the Penal Code only prescribes maximum punishment and in some rare cases, the minimum punishment for offences, and consequently the judges and magistrates enjoy wide discretionary powers in sentencing the convict individuals. Such unguided discretion often leads to inconsistent approaches in awarding punishment.

In our country, the court is generally not under an obligation to explain the rationale behind choosing a certain sentence. As a result, arbitrariness prevails in both the tiers of the judiciary- the subordinate and the higher judiciary. In Md. Karamot Ali alias Rafique Alias Rafiqul Islam v The State (2009) can be a glaring example of such unguided sentencing powers. In this case, the trial court sentenced the accused to seven years of imprisonment under section 25B(2) of the Special Powers Act 1974, which was the highest punishment prescribed by the relevant section. The High Court Division (HCD) reduced the term of the sentence to one year, which is the lowest punishment.

It is high time the legislature took the initiative to introduce sentencing guidelines in Bangladesh to ensure that the criminal courts all over the country take a consistent approach in awarding punishment to the convicts

Another reason for inconsistency in sentencing is that our criminal court administration does not admit the scope of hearing both parties on the quantum of sentence. After hearing both the prosecution and defence on points of the accused's involvement in the crime, the court itself decides what punishment should be proportionate to the crime. The provisions of sentencing hearings were once made part of the CrPC through the Law Reform Ordinance 1978. Unfortunately, the progressive sections of 250K(2) and 265K(2) incorporating sentencing hearings were repealed by the Code of Criminal Procedure (Second Amendment) Ordinance 1982 and 1983 respectively for reasons best known to the legislature. However, India has the provision of sentencing hearing in section 235(2) of the Indian CrPC 1973 which mandates that the court hear the accused on the question of sentence after conviction is decided on.

Though the Penal Code and the CrPC were drafted by the British and were highly influenced by the then British legal system, today's United Kingdom is not confined to the age when the judges were vested with such wide discretionary powers. They have come up with sentencing guidelines to meet the demands of time. The sentencing council was established by the Coroners and Justice Act 2009 to prepare guidelines for the courts in England and Wales. Judges and magistrates must follow the guidelines issued by the sentencing council unless the court is satisfied that it would be contrary to the interests of justice to do so. In the USA, the United States Sentencing Commission is empowered to draft guidelines for the federal courts. However, the United States v Booker (2005) case made the guidelines only advisory. In Canada, though there are no extensive guidelines, section 718 of the Criminal Code 1985 enumerates the objectives of imposing punishment.

The need for well-reasoned sentencing guidelines in our jurisdiction has continuously been urged by the bar, bench, as well as academia. In the case Rokia Begum v The State (2015), His Lordship Justice Muhammad Imman Ali acknowledged that sentencing is arbitrary in most cases and observed, "there being no sentencing guidelines, the tendency is for trial judges to award the highest possible sentence provided by the law". In another landmark case Ataur Mridha v The State (2021), His Lordship Justice Hasan Foez Siddique observed, "certain guidelines and policies need to be introduced by the legislature for bringing fairness and consistency while awarding sentences in criminal cases." Scholars have also emphasised on the significance of guided sentencing in their writings. Professor Mahbubur Rahman in his book "Criminal Sentencing in Bangladesh" shows the importance of guidelines on sentencing by going through various case laws in which the court had imposed punishments without assigning any plausible reasons.

It is high time the legislature took the initiative to introduce sentencing guidelines in Bangladesh to ensure that the criminal courts all over the country take a consistent approach in awarding punishment to the convicts.

The writer is Advocate, Supreme Court of Bangladesh.