Capital punishment is the death sentence awarded for capital offences like crimes involving planned murder, multiple murders, repeated crimes; rape and murder etc where in the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment. It is the practice of executing someone as punishment for a specific crime after a proper legal trial. It can only be used by a state, so when non-state organizations speak of having ‘executed’ a person they have actually committed a murder. It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimes.
The phrase ‘capital punishment’ comes from the Latin word for the head. A ‘corporal’ punishment, such as flogging, takes its name from the Latin word for the body.
On 16 May 2010, the High Court Division of the Supreme Court of Bangladesh declared
Unconstitutional such a provision providing for a mandatory death sentence.32 The Court ruled
That, regardless of the nature of the offence, legislation may not require that the death penalty
Is the only punishment available. This would impermissibly constrain the judiciary’s discretion
under the constitution to consider the individual circumstances of each case, including the credibility of evidence and witnesses.
FIDH and Odhikar welcome this landmark ruling, which contributes to restricting the scope
Of the death penalty in the domestic legal system, as prescribed by international human rights
Standards. As a consequence, the legislator should amend all the laws establishing mandatory
Death sentences in order to provide for an alternative prison sentence when there are extenuating
Circumstances. However, if it fails to do so, it remains to be seen how the courts of law of
Bangladesh will give effect to this ruling in practice.
1.Case name State vs Sukur Ali [9 (2004) BLC (HCD) 238].
2. Writ Petition No. 8283 of 2005. BLAST vs State (Not yet reported)
3. FIDH/Odhikar interviewed the IG Prisons on 07/04/2010
Crimes punishable by death-
A broad range of crimes are currently subject to the death penalty. These include crimes set
out in the Penal Code 1860, such as:
- waging war against Bangladesh (s.121),
- abetting mutiny (s.132),
- giving false evidence upon which an innocent person suffers death (s.194),
- murder (s.302),
- assisting the suicide of a child or insane person (s.305),
- attempted murder by life-convicts (s.307),
- kidnapping of a child under the age of ten (with intent to murder, grievously hurt, rape or
- enslave the child) and
- armed robbery resulting in murder (s.396).
In addition, other legislative regimes enumerate offences punishable by death. The Special
Powers Act 1974, which establishes emergency police powers to maintain national security,
makes provision for the death penalty for the offences of:
- sabotage (s.15),
- hoarding of goods or dealing on the black market (s.25),
- counterfeiting (s.25A), smuggling (s.25B), and
- poisoning or contamination of consumables (s.25C) or attempt of any of these offences
A range of offences related to firearms and explosives also attract the death penalty,26 as do
offences under the Anti-Terrorism Ordinance 2008.
4.The Arms Act 1878, s 20A (use of unlicensed firearms for murder); the Explosives Act 1884, s 12 (abetment or attempt to commit offences punishable by death); the Explosive Substances Act 1908, s 3 (causing explosion likely to endanger life or property).
Finally, a range of laws designed to prevent violence against women and children prescribe death
as punishment. Under legislation known as the Women and Children Repression Prevention
Act, passed in 2000, the death sentence is available for:
- murder or attempted murder involving burning, poison or the use of acid (s.4),
- causing grievous hurt by the above substances if eyesight or hearing capacity or face or
- breast or reproductive organs are damaged (s.4(2)(ka)),
- trafficking of women and children for illegal or immoral acts (s.5 and 6),
- kidnapping (s.8),
- sexual assault of women or children occasioning death (s.9(2)),
- committing dowry murder (s.11), and
- Maiming of children for begging purposes.
Under the Women and Children Repression Prevention Act of 2000, causing death for dowry
(s11(ka)) is a crime punishable with mandatory death penalty, in other words no other sentence
Mandatory death sentences are cause for grave concern as they deprive the judiciary of
the discretion to consider extenuating circumstances relating to the crime or the accused.
The obvious injustice that can result from a mandatory death sentence is illustrated in the case
of State vs. Shukur Ali, decided in 1995, where the High Court Division confirmed the death
sentence of a minor boy who was 14 years old when he committed the rape and murder of a
7 year old girl, under s.6 of an earlier version of the Women and Children Repression Prevention
Act, 1995. The Court noted that it was compelled to confirm the death sentence:
“No alternative punishment has been provided for the offence that the condemned prisoner
has been charged and we are left with no other discretion but to maintain the sentence if we believe that the prosecution has been able to prove the charge beyond reasonable doubt. This
is a case, which may be taken as ‘hard cases make bad laws”.
5. Human Rights Committee General Comment 6, para. 7.
6. UN Economic and Social Council, 45th plenary meeting. Resolution 15 (1996) [Safeguards guaranteeing protection of the rights of those facing the death penalty]. (E/RES/1996/15). 23 July 1996.
7. Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc: E/CN.4/1996/4, at para. 556.
8. UN Human Rights Committee General Comment 6 on the right to life (art. 6, par. 6), 30/04/1982.
Capital punishment scenario in Bangladesh
Capital punishment is a debated issue worldwide, and the arguments on both sides are equally strong. The proponents argue that the utter and deliberate denial of life and opportunity to others forfeits one’s own claim to continued membership in the community. The preciousness of life in a community must be so highly honored that those who do not honor the life of others make null and void their own right to membership in the community. On the other hand, even in societies where the judiciary can rightfully boast of being the finest organ of the state and the members of the community possess unflinching trust in its deliberations, the opponents of capital punishment argue that the denial of right of life is irrevocable, and the errors of justice cannot be rectified. If an innocent person has been hanged, the judge and the whole legal machinery involved have thereby been made a privy to the very crime they seek to punish. Their opposition to capital punishment in no way reflects any leniency towards the perpetrators of the crimes.
THE European Union (EU) is reportedly opposed to the death penalty for, what it called, politically motivated cases. The head of the EU delegation in Bangladesh, Ambassador Dr. Stefan Frowein, said: “The European Union is paying close attention to the various judicial proceedings in Bangladesh this year concerning politically motivated murders.” He made it clear that this EU statement “applies to trials for all such crimes, notably, the 1975 murders of Sheikh Mujibur Rahman and his family members and others, murders committed during the 2009 Bangladesh Rifles mutiny, and potentially also war crimes committed during the country’s struggle for independence.”(Source: the daily star, july24, 2012).
One has to take into cognizance the fact that it is only possible in Bangladesh, not in any member country of the EU, that a convicted cold blooded murderer of seven students at Dhaka University campus was freed from life imprisonment by the first military ruler of Bangladesh when he was running for president to obtain his (convict’s) father’s support in the election. Only a few years ago, a convicted killer got presidential mercy and his death sentence was commuted to acquittal,
9.jahangir Alam Akash. (2010). Death penalty and Bangladesh. Available: http://jaakash.wordpress.com/2010/02/25/death-penalty-and-bangladesh/. Last accessed 24th aug2012.
not even to life imprisonment. Does this type of socio-political scenario exist in any country of the EU?
The astonishing part of the EU statement, as elaborated by its ambassador to Bangladesh, is that it has specifically singled out three murders as “politically motivated,” and unambiguously said that death penalty in those cases should not be awarded. The cases in question are extremely sensitive ones, which have touched the hearts and emotions of the millions, and the government of the day has the unreserved and overwhelming mandate of the people to carry out the trials and award the deserving punishment as per the law of the land.
Every first-degree murder has one or more motives and, quite contrary to the EU’s observation, the depth of the crime is amplified only if it is politically motivated, not the other way around. Firstly, the killing of Bangabandhu and his family members, including children and women, was a crime against humanity; and the killers confessed, so wrongful conviction (a point against capital punishment) is absolutely ruled out.
Secondly, it is yet to be known if the BDR mutiny was at all politically motivated. In any case, the brutality the perpetrators exhibited in the cold-blooded killing of 57 of our finest officers in uniform, in addition to torturing and killing some of their family members, does not deserve any leniency whatsoever, and the nation wants the perpetrators to face the ultimate justice.
Lastly, if war crimes and genocide are considered as being “politically motivated,” then Hitler’s killings of millions of Jews in gas chambers was also one such crime. If the EU is advocating against the awarding of death penalty for war crimes, it first must self-denounce the Nuremberg trial and give back the lives of Hitler’s 10 associates who were hanged on October 16, 1946.
Most people of Bangladesh respectfully differ with the EU’s observation that “the abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights.” This difference is even greater for three of the murders that the EU has singled out in its statement as being politically motivated.
10.Mahfuzul I. Khondaker ; Eric G. Lambert ; Shanhe Jiang . (2011). Death Penalty Views in Bangladesh: An Exploratory Study of Capital Punishment Views Among Bangladeshi College Students. International Journal of Comparative and Applied Criminal Justice . Volume:35 (Issue:2 ), 123 to 140.
Death penalty scenario in abroad
The United States’ debate on the morality and efficacy of capital punishment reached an important juncture on June 29, 1972. The U.S. Supreme Court ruled the death penalty unconstitutional because in some cases it violated the Eighth Amendment, which protects citizens from “cruel and unusual punishment.” Beginning in 1967, while awaiting the Supreme Court ruling, and for the next nine years, the states stopped executions. In July of 1976, however, the Court upheld the death penalty as a legitimate punishment for certain crimes, opening the door for Congress and the state legislatures to make the death penalty an option again.
Today, while more than half of the countries in the world have abolished the death penalty in law or practice, the United States continues to use the death penalty in all but 12 states (plus the District of Columbia). From January 1977 through April 2001, 710 executions were carried out in this country: 545 by lethal injection, 149 by electrocution, 11 by gas chamber, three by hanging, and two by firing squad. According to Amnesty International, more than three countries a year on average have abolished the death penalty in law since 1976 or have gone from abolishing it for ordinary crimes to abolishing it for all crimes. Seventy-five countries and territories, including Australia, Germany, and Spain, refuse to impose the death penalty for any crime.
Of the countries that still permit the death penalty, only five use lethal injection, the most common method of execution in the United States. Seventy-three of those countries use firing squads, 58 hang condemned criminals, six stone them, and three still use beheading (Congo, Saudi Arabia, and the United Arab Emirates).
12.John Gettings . (2012). Death Penalty Update. Available: http://www.infoplease.com/spot/deathworld1.html. Last accessed 24th aug2012.
FOR THE DEATH PENALTY (PROS)-
Frank Carrington (1978) states- is there any way one can tell whether the death penalty deters murders from killing? There is no way one can tell whether the death penalty deters murderers from killing. The argument goes on that proponents of capital punishments should not have to bear the burden of proving deterrence by a reasonable doubt. Nor should the abolitionist have to prove deterrence by a reasonable doubt -neither side would be able to anyway. Frank Carrington (1978) claims common sense supports the inference that if, the threat of the death penalty decreases, the rate of murders increases than it may be true. But if the threat had increased, the homicide rate may decrease.
Millions are being killed and will be killed because our justice system is not working. Millions have already been killed and will be killed every year. According to Time Magazine, there are 2,000,000 people beaten in the United States. Some are knifed, shot, or assaulted. Crime growth has been going up in the past because of too much leniency going hand in hand with the increased rate of people being victimized. There are many loop holes devised for offenders, and because of that crime rate has increased drastically. Between l960 to 1968 crime rate increased 11 times. More and more people are being murdered, raped, assaulted, kidnapped, and robbed, etc. (Isenberg, I., 1997).
When you commit a felony, it is a matter of free will. No one is compelled to commit armed robbery, murder, or rape. The average citizen does not have a mind or intentions to become a killer or being falsely accused of murder. What he is worried about is being a victim.
Opponents argue that there is no deterrent effect by using the death penalty. Studies were made by Professor Isaac Erlich between the period of 1933 and 1969. He concluded “An additional execution per year may have resulted in fewer murders (Bedau, 1982, p. 323)”.
13.sean burgado. (1997). DEATH PENALTY ARGUMENTS. Available: http://www.prodeathpenalty.com/ornellaspaper.htm. Last accessed 24th aug2012.
The number of years on the average spent in death row is 10 years. It is known, with all the appeals, the death penalty is not swift! In fact, most murderers feel they most likely will never be put to death. If the death penalty was swift and inevitable, there certainly would be a decrease in homicide rates.
Most people have a natural fear of death- its a trait man have to think about what will happen before we act. If we don’t think about it consciously, we will think about it unconsciously. Think- if every murderer who killed someone died instantly, the homicide rate would be very low because no one likes to die. We cannot do this, but if the Justice system can make it more swift and severe, we could change the laws to make capital punishment faster and make appeals a shorter process. The death penalty is important because it could save the lives of thousands of potential victims who are at stake (Bedau, H., 1982).
AGAINST THE DEATH PENALTY (CONS)
What would it accomplish to put someone on death row? The victim is already dead-you cannot bring him back. When the opponents feel “fear of death” will prevent one from committing murder, it is not true because most murders are done on the “heat of passion” when a person cannot think rationally. Therefore, how can one even have time to think of fear in the heat of passion?
Some criminologist claim they have statistically proven that when an execution is publicized, more murders occur in the day and weeks that follow. A good example is in the Linberg kidnapping. A number of states adopted the death penalty for crime like this, but figures showed kidnapping increased. Publicity may encourage crime instead of preventing it (McClellan, G., 1961). Does the death penalty give increased protection against being murdered? This argument for continuation of the death penalty is most likely a deterrent, but it has failed as a deterrent. There is no clear evidence because empirical studies done in the 50’s by Professor Thorsten Sellin, (sociologist) did not give support to deterrence (McClellan, G., 1961).
14.sean burgado. (1997). DEATH PENALTY ARGUMENTS: Deterrent or Revenge. Available: http://www.prodeathpenalty.com/ornellaspaper.htm. Last accessed 24th aug2012.
Capital punishment is not always just and appropriate. Usually, it has been seen that poor people have to succumb to death penalty as they cannot afford good lawyers to defend their stance. There are very rare cases of rich people being pronounced capital punishment. Also, an individual from minority communities are more likely to be given death penalty.
Every human being is entitled to receive a second chance in life. Putting a convict behind bars is always a logical option than killing him, as there is a chance that he may improve. People who have served life sentences are reported to have bettered their earlier ways of living and have made worthwhile contribution to the society.
There is also a chance that an individual is innocent and is wrongly charged for a crime he has never committed. There have been cases where individuals were released after being given death sentence, because they were proved innocent. There are also cases where a person’s innocence was proved after he was put to death. Hence, it is best to avoid executing a person.
It is reported that there is no relation between capital punishment and crime rate i.e giving death penalty does not decrease crime rate in the society. Crimes are prevalent in countries where capital punishment exists and also where it has been abolished.
15.the lawyers and jurists. (2012). Capital Punishment should be banned from Bangladesh as this sort of punishment is inhumane.. Available:http://www.lawyersnjurists.com/resource/articles-and-assignment/capital-punishment-should-be-banned-from-bangladesh-as-this-sort-of-punishment-is-inhumane/. Last accessed 24th aug2012.
Recent changes regarding death penalty
The cabinet yesterday (july23,2012) approved the final draft of the Anti-terrorism (amendment) Act, 2011 with a provision of death penalty for getting involved in, supporting or financing militancy and terrorist activities in the country. According to the proposed act, a convict will have to serve a minimum rigorous jail term of three years to a maximum of 20 years, including fine or both depending on the nature of the crime.
According to the proposed act, a convict will have to serve a minimum rigorous jail term of three years to a maximum of 20 years, including fine or both depending on the nature of the crime. Any Bangladeshi or foreign national using Bangladeshi land for terrorist activities in other countries or supporting such activities would be brought to trial under this act. The approval came at the weekly cabinet meeting at Bangladesh Secretariat, with Prime Minister Sheikh Hasina in the chair.
As per the act, a person or entity will be considered as a terrorist if the person or entity commits murder or injures, detains or kidnaps other(s) or do harm to someone else’s property and uses or keeps explosives, flammable objects, firearms or other chemicals to destroy the integrity, solidarity, security or sovereignty of Bangladesh.
Earlier the cabinet on July 11,2012 approved in principle the draft of the act and decided to bring some changes to it in line with international standards.
The Asia/Pacific Group on Money Laundering (APG), the United Nations, International Monetary Fund, Asian Development Bank and World Bank recently recommended the government incorporate some international standard provisions in the act including death penalty as the highest punishment. Accordingly, the government incorporated the death penalty as the highest punishment instead of the earlier provision of maximum 20 years’ imprisonment.
16.Hasan Jahid Tusher . (2012). Death penalty for terrorism. Available: http://www.thedailystar.net. Last accessed 24th aug2012.
17.Arpeeta Shams Mizan. (February 04, 2012). Legal analysis on death penalty . Available: http://www.thedailystar.net/law/2012/02/01/analysis.htm. Last accessed 24th aug2012.
Actual methods of capital punishment vary from place to place. In some Muslim countries, methods have included beheading, hanging, stoning, and firing squad. Executions are held publicly, to serve as warnings to would-be criminals. Here is a common practice of death penalty and killings without justice. Every year many peoples are killed by death penalty and by the extra judicial killings. How many people have killed since independence to till today we don’t have this statistics. It is no doubt that, death penalty is one kind of killing. Capital Punishment is necessary, if the situation is applicable. This is not unethical or immoral but it has to be acceptable in general.
- Banner, Stuart. 2002. The Death Penalty: An American History. Cambridge, Mass.: Harvard Univ. Press.
- Bedau, Hugo Adam, and Paul G. Cassell, eds. 2004. Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford Univ. Press.
- Bigel, Alan I. 1994. “Symposium on Capital Punishment—Justices William J. Brennan, Jr., and Thurgood Marshall on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court.” Notre Dame Journal of Law, Ethics, and Public Policy (Thomas J. White Center on Law and Government).
- Foley, Michael A. 2003. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. Westport, Conn.: Praeger.
- Rodriguez, Roxanne. 2001. The Modern Death Penalty: A Legal Research Guide. Buffalo, N.Y.: W.S. Hein.
- Von Drehle, David. 1995. among the Lowest of the Dead: The Culture of Death Row. New York: Times Books.
- Hasan Jahid Tusher. (2012). Death penalty for terrorism.Available: http://www.thedailystar.net. Last accessed 24th aug2012.
- Hasan Jahid Tusher. (2012). Death penalty for terrorism. Available: http://www.thedailystar.net. Last accessed 24th aug2012.
- Arpeeta Shams Mizan. (February 04, 2012). Legal analysis on death penalty. Available: http://www.thedailystar.net/law/2012/02/01/analysis.htm. Last accessed 24th aug2012.
- Mahfuzul I. Khondaker ; Eric G. Lambert ; Shanhe Jiang . (2011). Death Penalty Views in Bangladesh: An Exploratory Study of Capital Punishment Views Among Bangladeshi College Students. International Journal of Comparative and Applied Criminal Justice. Volume:35 (Issue:2 ), 123 to 140.
- jahangir Alam Akash. (2010). Death penalty and Bangladesh. Available: http://jaakash.wordpress.com/2010/02/25/death-penalty-and-bangladesh/. Last accessed 24th aug2012.
- Capital Punishment: Here & Abroad — Infoplease.com http://www.infoplease.com/spot/deathworld1.html#ixzz21Yxm8qth
- John Gettings . (2012). Death Penalty Update. Available: http://www.infoplease.com/spot/deathworld1.html. Last accessed 24th aug2012.
- “Individual Rights and Responsibility – The Death Penalty, But Sparingly,” www.aba.org
June 17, 2008
- “Close to Death: Reflections on Race and Capital Punishment in America,” from Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case
- us Supreme Court, in a decision written by Chief Justice John G. Roberts
Apr. 16, 2008
- Justice of the US Supreme Court
Dissenting opinion in Gregg v. Georgia (347 KB), July 2, 1976.
- Late Professor of Jurisprudence at Fordham University “For the Death Penalty,” New York Times Oct. 17, 1983
- “The Death Penalty: Questions and Answers,” ACLU.orgApr. 9, 2007
- “Capital Punishment: The Case for Justice,” OrthodoxyToday.orgAug./Sep. 2004
- Jesuit Priest and Community Professor of the Humanities at St. Peter’s College Email to ProCon.org,Sep. 5, 2008
- US Senator (D-WI) introducing the “National Death Penalty Moratorium Act of 2000”
April 26, 2000.
- “Death Penalty and Sentencing Information,” Justice for All website
Oct. 1, 1997
- General Counsel at the Center for Equal Opportunity
“The Color of Death: Does the Death Penalty Discriminate?,” National Review Online
June 11, 2001
- .sean burgado. (1997). DEATH PENALTY ARGUMENTS. Available: http://www.prodeathpenalty.com/ornellaspaper.htm. Last accessed 24th aug2012.