ARTICLE TEXT

Should a court ever be forced to sentence someone to death, whatever the circumstances of the crime and the offender? In BLAST v Bangladesh, better known as the Shukur Ali case, the Supreme Court of Bangladesh answered no. It held that laws prescribing death as the only possible punishment violate the Constitution because they take away the court’s duty to decide the right sentence in each case.

The Background

In 1999, in Manikganj, Shukur Ali, then fourteen years old, raped and killed a seven-year-old girl. He was tried by the Nari-o-Shishu Nirjatan Daman Tribunal under the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain 1995, the special law then in force on violence against women and children. Section 6(2) of that Act provided that anyone who caused death after rape “shall be punished with death”. No other sentence was available. On 12 July 2001, the tribunal sentenced Shukur Ali to death. His appeals failed.

Bangladesh Legal Aid and Services Trust (BLAST), together with other petitioners, then filed Writ Petition No. 8283 of 2005, challenging the mandatory death penalty itself.

The High Court Division Judgment (2010)

On 2 March 2010, a Division Bench of Md Imman Ali J and Sheikh Abdul Awal J held section 6(2) unconstitutional. The court reasoned that sentencing is a judicial function. When the legislature fixes a single mandatory punishment, it prevents the judge from considering the facts that make one offence or offender different from another, such as the offender’s age, mental state or role in the crime. Such a law, the court held, is inconsistent with the guarantees of equality and protection of law and with the prohibition of cruel punishment.

The Appellate Division Judgment (2015)

The government appealed. On 5 May 2015, a four-judge bench of the Appellate Division, in a judgment written by Chief Justice Surendra Kumar Sinha, dismissed the appeal. The court declared sections 6(2) and 6(4) of the 1995 Act ultra vires the Constitution, together with the transitional provisions of the Nari-o-Shishu Nirjatan Daman Ain 2000 that carried pending cases under the old Act forward. It directed that cases still pending under the 1995 Act should be tried under that Act but sentenced under the 2000 Act, where death is not the only available punishment.

The court relied on Articles 27 (equality before law), 31 (protection of law), 32 (right to life and personal liberty) and 35(5) (prohibition of cruel, inhuman or degrading punishment). Its central reasoning was that a mandatory death sentence is harsh, unfair and oppressive, because it forces the court to ignore circumstances that are plainly relevant to punishment. In a memorable line, the Chief Justice wrote that the legislature cannot make relevant circumstances irrelevant. The court also drew on comparative authority, including the Indian Supreme Court’s decision in Mithu v State of Punjab (1983), which struck down the mandatory death penalty in section 303 of the Indian Penal Code, and on similar decisions from other Commonwealth jurisdictions.

What Happened to Shukur Ali

On 3 August 2015, the Appellate Division, hearing a review of his own case, commuted Shukur Ali’s death sentence to life imprisonment. His lawyers said it was the first time a death sentence had been reduced on review.

Why It Matters

The Shukur Ali case is not a judgment against the death penalty as such. The death sentence remains lawful in Bangladesh for many offences. What the court rejected is the removal of judicial discretion. Every sentence of death must now be the product of a judge weighing the particular facts of the crime and the particular circumstances of the offender.

The case is especially important given the pressure, after high-profile crimes, to respond with harsher and more rigid punishments. Later amendments to the law on violence against women and children have kept death as a possible, not mandatory, punishment. For practitioners, the case is the foundation of arguments on sentencing discretion and mitigation. For students, it is a clear example of the separation of powers applied to punishment: Parliament defines crimes and sets the range of penalties, but the choice of sentence in a particular case belongs to the courts.

Sources

1. Supreme Court of Bangladesh, 1 SCOB [2015] AD 1 (bulletin): https://www.supremecourt.gov.bd/resources/bulletin/1_SCOB_Total.pdf
2. BLAST, High Court Division judgment in WP 8283 of 2005 (PDF): https://www.blast.org.bd/content/judgement/wp8283-2005shukurali.pdf
3. BLAST, Shukur Ali case summary: https://www.blast.org.bd/content/laws/Shukur-Ali-Case-Website-Summary.pdf
4. bdnews24, Appellate Division lowers Shukur Ali’s death penalty to life in prison: https://bdnews24.com/bangladesh/appellate-division-reviews-death-penalty-of-shukur-ali-lowers-it-to-life-in-prison