The High Court yesterday declared illegal and unconstitutional the provision of awarding death sentence under the Women and Children Repression Prevention (Special) Act 1995.
Section 6(2) of the act carried out the provision of awarding death sentence to any person for killing any woman or child after rape.
The bench comprising Justice Md Iman Ali and Justice Sheikh Abdul Awal delivered the verdict following a writ petition filed by Bangladesh Legal Aid and Services Trust (BLAST) and Sukur Ali of Manikganj district, a condemned convict, challenging legality of the act.
The court also stayed the execution of death sentence of Sukur Ali, son of Hashem Mondal of Manikganj for two months. He was given capital punishment under the section in a rape and murder case filed in 1999.
In its verdict, the court observed that whatever is the nature of crimes, death penalty cannot be the only punishment for the criminals as per the constitutional provision.
The Court said the circumstantial condition and credibility of evidences and witnesses should be taken into consideration in awarding punishment. If death is the only option for crimes then the jurisdiction of the judges are restrained.
Advocate Ruhul Quddus, counsel for one of the petitioners, told reporters that under the criminal law the provision of death sentence should not be the only option as the punishment for the criminals.
From now on death penalty should not be the only option for the criminals following the HC verdict, he added.
The Women and Children Repression Prevention (Special) Act 1995 has been replaced by the Women and Children Repression Prevention Act 2000 with a provision of life-term imprisonment and capital punishment as an alternative.
On July 12, 2001, the Women and Children Repression Prevention Special Tribunal of Manikganj awarded capital punishment to Sukur Ali, now in Dhaka jail.
Later Sukur filed an appeal with the HC against the trial court verdict. But the HC on February 25, 2004 upheld the judgment of the trial court and the Appellate Division of the Supreme Court also upheld the HC verdict on February 23, 2005.
Then BLAST and Sukur Ali filed a writ petition with the HC on December 2005 challenging constitutional validity of the section.
After two days of the writ, the court issued a rule upon the government to show cause as to why the provision of the act under which the case was filed and trial was done should not be declared unconstitutional and without lawful authority.
Now, let’s compare it to extracts from the report on the Court of Appeal verdict for Yong Vui Kong’s case…
In a landmark ruling, Chief Justice Chan Sek Keong affirmed the line of decisions passed in Ong Ah Chuan and Nguyen. He ruled that Article 9 (1) of the Singapore Constitution, which establishes that ‘no person shall be deprived of his life or personal liberty save in accordance with law’, neither precluded ‘inhuman punishment’ nor did it embrace customary international law that prohibits the mandatory death penalty, as lawyer M Ravi had argued.
CJ Chan said that the rulings of certain Caribbean jurisdictions against the mandatory death penalty were concerned with murder cases, and as such had no direct application to the case at hand. Furthermore, he noted the lack of an explicit prohibition against inhuman punishment in the Singapore Constitution.
CJ Chan mentioned that reading the constitutional proviso of Article 9 (1) to forbid ‘inhuman punishment’ would be an act of ‘legislating … new rights under the guise of interpreting’. He noted that the government had considered – and rejected – a proposed constitutional clause against inhuman punishment in 1969.
The court also did not find applicable the Indian Supreme Court ruling that declared the mandatory death penalty inconsistent with their constitutional equivalent of Article 9 (1). CJ Chan found that to accept the Indian standard of a ‘fair, just and reasonable procedure’ would require judicial interpretation of the scope of ‘reasonable’ – thus potentially leading to a conflict with Parliament. Affirming the decision of Ong Ah Chuan, the court believes that any law that conforms to the ‘clear’ principles of natural justice would suffice.
The Daily Star article was sent to me by my friend Reza after conversations on the death penalty. He’s researching the death penalty in Bangladesh at the moment, while I’m campaigning against the mandatory death penalty in Singapore, and so it was one area of interest in both our countries that we share. Upon reading the article, I was amazed at the contrast between our two justice systems.
Bangladesh is a country we often label as a “third world” country, while Singapore has often been heralded for our advancement, our forward-thinking values, our entry into the “first world”. Yet the Bangladeshi court was the one with the moral courage to challenge the government, demanding that the government prove that the mandatory death penalty was constitutional. After reviewing the case, the High Court then had the strength to stand up for what they believed was right, and declare the death penalty* illegal and unconstitutional.
The Bangladeshi High Court also highlighted the fact that the mandatory death penalty restricts the jurisdiction of the judges, a concern that anti-MDP campaigners in Singapore have been raising from the very, very beginning. How is it that this realisation can come so easily to the court and lawyers of Bangladesh, and yet be constantly overlooked, side-stepped and quashed by Singapore’s government and justice system alike?
Some might point out that the cases are different: in Bangladesh it was in the case of murder and rape, whereas in Singapore it’s for drug trafficking. However, the High Court said that “whatever is the nature of crimes, death penalty cannot be the only punishment for the criminals as per the constitutional provision”. Whatever is the nature of crime, it is not the crime that is in question, but the fact that mandatory sentencing in itself restricts the judges and denies due process to the defendant.
(And need I even mention that the crime in question in Bangladesh was even more heinous than that of Vui Kong’s attempted drug trafficking?)
The case of Bangladesh is yet one more addition to a long line of countries proving that the abolition of the mandatory death penalty is becoming customary international law – yet another point denied by the Court of Appeal last Friday.
It is an embarrassment to Singapore that our supposedly “first-class” system falls short even when compared to the judiciary of a “third world” country. Projecting the image of the “first world” is not equivalent to being in the “first world”.
* Although the article uses the term “death penalty”, from what was reported I conclude that they are actually referring to the “mandatory death penalty”.