Reviewing The Views
The need for sentencing guideline for Bangladesh
The High Court Division at the time of giving verdict on the death sentence of Oyshee Rahman for killing her parents - Special Branch (SB) inspector Mahfuzur Rahman and his wife Swapna Rahman - back in 2013 observed that, our criminal justice system has no provision to reduce the death sentence by mitigating circumstances as the rights of the offender. So, in order to impose the sentence upon a perpetrator, if proved, there must be a guideline or rules as to how it can be imposed."
Unfortunately, in the criminal justice system of Bangladesh sentencing guideline is yet to be accommodated in our legal framework. In our jurisdiction when the trial court pronounces the fate of the accused through its judgment, it is under no obligation to invite any presentence report or separate sentencing hearing. Most of the developed countries of the world including UK, USA & Australia have already adopted the notion of sentencing hearing within their legal framework, in Bangladesh a judgment for both conviction and sentence is delivered simultaneously in a single sitting. The UK legal system has even got a Sentencing Council namely "Sentencing Council for England and Wales" for fixing and changing sentencing guideline time to time for adapting to the never-ending demand of society. It promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary.
Even in our neighbouring country India, statutory provisions are in place to hold the hearing before pronouncing the punishment. The provision for a sentencing hearing has been incorporated under section 235(2) of the Code of Criminal Procedure 1973.
Interestingly, we had the similar type of provisions in our law but the said provisions had been repealed by the Martial Law Authority for reasons best known to them.
In the absence of sentencing guideline, pre-sentence report and sentence hearing, the fate of the accused sometimes swing on the mood and unrestrained discretion of the judges. As a result, diverse categories of sentencing decisions are arising for similar sets of events leading to multiply confusion and uncertainty between both sides of the litigation. Even the most experienced criminal lawyers are sometimes without any clue regarding the outcome of a criminal case. Moreover, for lacking any sentencing policy most of the judges award the maximum punishment when a ceiling is specified whereas they could easily choose any range of punishment from the minimum and maximum level prescribed for a specific unlawful act. Consequently, non-custodial sentences including verbal sanction, conditional discharge, probation order, community service order, and victim compensation order also remain largely unutilized while long custodial sentence and death penalty are frequently imposed in Bangladesh.
Lacking any specific guideline for sentencing the trial courts fail to consider the mitigating and aggravating factors. The mitigating factors include the young age of the offender, poor socio-economic aspect, and the circumstances under which he was forced to commit the crime. On the other hand, the aggravating factor encapsulates pre-planned crime, crime committed against the child or against the person in a vulnerable position, mutilating dead bodies etc. It is very obvious that the punishment of a teenager who murders someone in the heat of the moment cannot be equated with a murder committed by a contract killer. Consequently, the punishment would be different. Sentencing guideline gives the judges a clear guideline to follow which eventually help them to proper dispense of justice
Having separate sentencing hearing is also a sine qua non for ensuring justice. In our jurisdiction the accused hardly find any opportunity to clarify his side of the story except under Section 342 of the Code of Criminal Procedure. As a result, the defence case theory, the socio-economic factor and other mitigating factors remain unheard off. On the other hand, in the absence of any specific provision of the plea bargain, the accused are very much reluctant to admit his guilt even though the punishment is inevitable.
The need for the sentencing guideline, presentence report and plea bargain is so obvious as to defy any kind of contemplation. We need to get a much-needed clarity on this issue for ensuring justice -not only from the point of view of the complainant but also from the end of the accused.
Barrister Quazi Maruful Alam is an Advocate, Supreme Court of Bangladesh and Nazia Rahman is an Assistant Professor of Law, State University of Bangladesh.