Is it finally time to lay the death penalty to rest?

On 12 February, the Office of the United Nations High Commissioner for Human Rights (OHCHR) published its fact-finding report on the human rights violations of the Hasina regime during the July uprising.

The first-of-its-kind investigation on Bangladesh, conducted at the behest of Chief Advisor Yunus, detailed injustices, recommendations, and evidence of possible crimes against humanity perpetrated by the Awami League regime during the student protests.

With neighbouring India providing refuge to the deposed Sheikh Hasina, propping her up, and spending months countering Bangladesh's narratives on the events of the July revolution and its aftermath, the UN report came at a crucial juncture, legitimising Bangladesh's stance on the world stage, and offering a potential avenue for justice and accountability.

However, despite corroborating Bangladesh's statements about the human rights violations directed by Hasina's regime, the United Nations has made it clear under no uncertain terms that it cannot provide further substantial evidence nor cooperate with the country regarding the trials unless one condition is met: a moratorium on the death penalty.

Rory Mungoven, chief of the Asia-Pacific region of OHCHR explained in a press conference that the report abstained from naming the individual perpetrators of the human rights abuses. He mentioned that the UN possessed further evidence that could help bring justice to those responsible, but policy dictates that they cannot cooperate with trials that may lead to the death penalty. 

He also claimed that keeping the death penalty intact would hinder the trials as many countries would be unwilling to extradite individuals to Bangladesh on that basis. Mungoven urged Bangladesh to consider putting a temporary prohibition on the death penalty to ensure the highest international standards are met for the upcoming trials.

This has once again reignited the debate on the merits of the death penalty in Bangladesh. The interim government has touted state reforms, including judicial reforms, as one of its primary goals before the next election. With the ouster of Hasina, the advent of Bangladesh 2.0, mounting international pressure, and the promise of trials backed by the UN, is it finally time for the country to begin the process of abolishing the death penalty?

Death penalty and its efficacy in Bangladesh

Bangladesh is among the 55 countries in the world that still retain capital punishment in the law, often receiving criticism from international human rights groups such as Amnesty International as well as local organisations such as Bangladesh Legal Aid Services Trust (BLAST).

Under Bangladesh's penal code, 33 offences are punishable by death. Nine of these offences were introduced during the British period, and 23 were introduced after Bangladesh's independence in 1971. Furthermore, 14 of these offences have been introduced into the law since 2000, pointing at an increased reliance on the death penalty in the last two decades. 

Additionally, 25 of the 33 offences for which the death penalty is permissible do not require fatal consequences for the victim. In other words, in 25 offences the perpetrator is not required to have committed a crime leading to a victim's death to be sentenced to death. This goes against the International Covenant on Civil and Political Rights (ICCPR).

Even in the application of the law, there is a clear upward trend in death sentences for prisoners. From 1991-2000, there were 11 people executed under the death penalty. From 2001-2010, this had jumped to 57 death sentences. 2011-2019 saw 30 people who were executed due to the death penalty.

In a study published by the University of Dhaka's Law Department in 2020 titled "Living under the sentence of death," which looked at the socioeconomic statuses of people who were given the death penalty, it found that in a large majority of the cases, there was corruption involved at some level.

Dr Mahbubur Rahman, lead researcher of the study, told TBS, "The death penalty in Bangladesh has many problems. In a country where corruption is so entrenched within the justice system and law enforcement, you cannot trust the state to collect evidence and conduct proper trials of the accused."

Through the study, Dr Mahbub's team found that in many cases the police resorted to torture and coercion to get confessions out of accusers who were later sentenced to death. "In some cases, the accused's family members were threatened to get them to confess to crimes. In one instance, a person's parents were taken in front of them and were threatened to break the accused's resolve," said Dr Mahbub.

Those who receive the death penalty in Bangladesh overwhelmingly come from low-income and low-education backgrounds, between the age of 20-30. 

Advocate Shahanur Islam, founder and president of JusticeMakers Bangladesh in France, has spoken out against the death penalty on numerous occasions. According to Advocate Shahnur, there has never been any study in any country in the world that has shown that the death penalty has been a crime deterrent. 

He explained, "In Bangladesh, due to corruption from the filing of the case to the trial, it is poor people who suffer primarily from the death penalty. It takes years, many times even a decade for a trial to end, and it is crucial to have good lawyers represent you in court. Since the death penalty is given to the poorest of our country, they cannot afford good legal representation, ensuring their eventual demise."

Barrister Mahbub Uddin Khokon, BNP lawyer and president of the Bangladesh Supreme Court Bar Association added, "Poor people are disproportionately affected when it comes to the death penalty. Not only do you not see people from a higher income level get death sentences for similar crimes, but you also don't see any punishments for big crimes like bank fraud."

Another big concern surrounding the death penalty is the filing of false cases. Since the July uprising, the country has seen a surge of flippant cases being filed against people as a means of revenge. When it comes to cases which lead to the death penalty, things are no different.

Barrister Khokon said, "In most cases leading to the death penalty, a case is first filed against someone for a crime like murder. However, in many such instances, a person may have a case filed against them falsely due to property disputes."

Should Bangladesh suspend the death penalty?

Despite the many failings of the death penalty, Bangladesh is currently at a crossroads. 

On one hand, putting a moratorium on the death penalty will garner international favour from the UN, other human rights groups, and many countries, paving the way for a trial with the full support of the United Nations, improving Bangladesh's image on the world stage. 

On the other hand, it may alienate the national population, who are seemingly in favour of the death penalty for those who were responsible for the brutal killings.

Nurul Huda, former Inspector General of Police in Bangladesh believes this is an entirely political decision, "If the government wants to bow to the pressure of international bodies at the expense of national interests, let them suspend the death penalty. But I don't see how we can let those responsible for such heinous crimes go unpunished."

Furthermore, there is a distinction between the death penalty for crimes like murder and rape and crimes against humanity such as what took place during the July uprising. Dr Mahbub worked on death penalty research for ordinary crimes that were brought forward through cases. In many cases, the trials took over 20 years, and corruption was rampant. But for crimes against humanity, he believes many of the dimensions may be different, "The international crimes tribunal has a different dimension, the trials may not take nearly as long, and even the socioeconomic status of the accused are different, making this a different issue."

Mohammed Tajul Islam, the chief prosecutor of the international crimes tribunal is grateful to the UN report but is against a moratorium on the death penalty. He said, "Bangladesh has the death penalty for crimes like murder, rape etc, so you cannot expect us to forgo it for crimes against humanity."

According to him, the UN report was supremely helpful and provided a lot of details already, so if the UN does not want to help further, Bangladesh can take it from here.

One of the biggest concerns in people's minds when it comes to abolishing the death penalty in Bangladesh is that the general public seems to be in support of it. According to Dr Mahbub, the path to abolition must be gradual, but he cautions against the interim government taking any drastic measures regarding it.

"This is such a big political decision that I think the interim government should leave this alone. With the current situation, and people's anger, it would be counterproductive to ban the death penalty. The government would lose all support," states Dr Mahbub.

However, according to a 2016 international study on the abolition of the death penalty by Cornell Law School, 14 different countries that successfully banned the death penalty were analysed, and it was found that before a moratorium was initially placed, the population of every single country, such as Nepal and Canada, were in favour of the death penalty. 

Despite this, the governments of the countries did not lose the support of the populations when the moratorium was announced, and no country saw riots regarding it. In fact, eventually, with time, popular support for the death penalty dropped in each of the countries.

Advocate Shahanur said, "You cannot follow the whims of the general public on this. They also support crossfire killings. You have to campaign and show them better ways."

Barrister Khokon believes that the failures of the death penalty cannot be ignored either and that proper discussions need to be had about not just a moratorium, but a more rehabilitative form of justice.

To that end, the study by Cornell also revealed that the best time to announce a moratorium on the death penalty was during a great upheaval in a country, leading to the rise of a government that campaigned on reforms and exerted its political will to make the reforms happen. 

In that sense, perhaps this is the perfect time to introduce a moratorium on the death penalty.