Tasmiah Nuhiah Ahmed of DOT : Human Rights Day is globally observed every year on 10 December. It remembers the day on which, back in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR); as a response to the atrocities during the Second World War. In 1950, the Assembly passed a resolution, being no. 423 (V), inviting all the States and interested organizations to observe 10 December of each year as Human Rights Day. The UDHR is of great importance as it marks the true start of the international protection of human rights. It sets out the fundamental rights, which includes the right to life and freedom from torture. These two rights are of vital importance in relation to the death penalty, which is an ultimate cruel, inhuman and degrading punishment.
The Constitution of People’s Republic of Bangladesh also acknowledges the protection of right to life and personal liberty and protection from torture or to cruel, inhuman, or degrading punishment or treatment. Article 32 of the Constitution provides that no person shall be deprived of life or personal liberty save in accordance with law. Article 35 of the Constitution provides that no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
The death penalty abolition movement began in the mid – nineteenth century. Yet by 1965, only 12 countries had completely abolished it and 11 other countries had abolished it for ordinary crimes in peacetime. By the year 1995, 58 countries had abolished capital punishment; 46 of them absolutely, and 12 for ordinary crimes. The significant increase in abolition of the death penalty in those thirty years could be attributed to Protocol No.6 to the Convention for the Protection of Human Rights. Article 1 of Protocol 6 states clearly that the ‘death penalty shall be abolished.’ Seven years later, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Article 1 stated ‘ no-one within the jurisdiction of a state party to the present Optional Protocol shall be executed.’ Article 2 of both the Protocols provides for some reservation. Yet by mid- 1995, 18 countries had ratified the Sixth Protocol and 15 of these countries were party to the Second Optional Protocol. Thus, by 1995 much of Western Europe had abolished the death penalty. However, this situation was not reflected in America. The only similar development in the USA was in 1990 when the General Assembly of the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Article 1 called upon states to abstain from the use of the death penalty, but it did not impose an obligation on them to fully remove it from the statute book. Before this Protocol was adopted there had been hopes for major developments in the abolition of the death penalty in 1972. In Furman v. Georgia the U.S Supreme Court held that the death penalty was ‘cruel and unusual’ punishment, because it was being applied in an arbitrary, capricious, and discriminatory way, which was contrary to the Eighth Amendment of the Constitution of the United States. The Eighth Amendment banned cruel and unusual punishment. Nevertheless, this did not lead to the abolition of the death penalty in the USA, like many had hoped.
In Bangladesh we still exercise death penalty as capital punishment. Since many countries of the world have moved towards abolition of death penalty, we may also consider abolition of the same. The 11th parliamentary election is knocking at our door. The next government to be formed after this election may consider taking effective measures for abolishing death penalty.
The reasons why the government should consider this death penalty abolition campaign may be the followings:
1. During the tenure of Bangabandhu Sheikh Mujibur Rahman (1972-1975) there was not a single execution,
2. No female convict has been executed till date since the independence of this country. The reason behind may be that we also understand and acknowledge that imposing death penalty and execution of the same is a violation of Human Rights;
3. In many death reference cases we have seen that the verdict of lower court imposing death penalty has been reversed by the High Court as the lower courts in most of the cases failed to take into account the mitigating factors. Article 111 of the Constitution of Bangladesh obliges the lower court to abide by the decision of the higher courts. However, we see that in a huge number of cases, the lower courts are not considering the factors considered by the higher courts for commuting a death penalty to life imprisonment while giving a judgment. It implies our judges of lower courts are not sufficiently trained to deal with death penalty cases. Having said that, it would be inappropriate to allow the judges of lower courts to impose death penalty without giving proper reasoning why they have given so;
4. There is no reconciliation mechanism in place for the parties in dispute which may lead to imposing death penalty on the offender;
5. There is no system of sentencing hearing in our judiciary. We don’t have any sentencing guideline either;
6. Judges are given the discretion to give death penalty in cases where this is also scope to avoid this capital punishment;
7. There are a number of cases where people have been on death row for a long period (In Shukur Ali Case of BLAST- the convict was on death row for 14 years), due to our slow judiciary and backlog of cases.
Considering the abovementioned reasons, the next government to be formed after this 11th parliamentary election may take this matter into its account sincerely.
At the end of the day, we must not forget that no law is above human life. Laws are only made to bring peace and justice in human life.
The writer is Executive Editor, Daily Our Time