The case of Shukur Ali
Mandatory death penalty and the 'hard case' phenomenon
Dr. Ridwanul Hoque
Professor Raul Pangalangan of the University of Philippines described the 'hard cases' as under: “In many Asian countries today, courts have faced hard cases where the constitutionally mandated results would have violated the communal sense of what is a “just” outcome, and judges have thus compromised their law for what purports to be a “higher” politics. In the process, they have reconceived themselves not as a check on popular power but as its handmaiden. This in turn transforms the source of legitimacy of judicial decision, the roles of the lawyer and the judge in vindicating public norms through non-democratic institutions and, generally, the place of courts in democratic governance”.
Professor Pangalan was referring to an extremely complex legal arena of what is known as law and politics, or, to paraphrase, law in politics and to the judicial role in which the judge negotiates with (or navigates) the law to reach a pragmatic conclusion. In this write up, however, I will discuss a different type of hard case, the case of Shukur Ali, which arguably involves widely-framed constitutional rights and non-static moral standards and the conflict between law and morality. Hard cases are those cases for the adjudication of which the judge has to struggle to find 'judicially determinable' standards or principles to apply. This 'hardship' for the court may arise from the polycentricity of issues, or, for example, from the fact that a particular dispute is exceedingly value-laden or overly complex. For example, the issue of constitution-compatibility of the death penalty for any offence, homosexuality, or unregulated abortion, or of the like issues may fairly give birth to 'hard cases'. One should not, however, confuse the hard cases with unjusticiable causes which, too, may lack judicially determinable standards, and which are usually deferred to another more appropriate state-organ for determination. Hard cases are justiciable, but are very hard to decide upon. This is also to note that some scholars think that in 'hard cases' the judge has the 'discretion' to decide the case either way, a view which Dworkin thinks is “wholly inadequate”.
I regard the cases discussed here as 'hard cases', as they were not quite easy to decide, mainly because, they indeed implicated, in differing ways, the perplexing issue of imposing death sentence on a minor youth. Also, needless to say, they involved competing approaches to legal interpretations. Firstly, however, let us take up the facts that led to what may be called Shukur Ali cases.
Shukur Ali was charged with committing the offence of raping and murdering a seven-year-old girl under s. 6(2) of the Nari O Shisho Nirjaton (Bishesh Bidhan) Ain, 1995, and was arrested when he was aged 14. After a trial conducted in company with adult offenders, in contravention of the Children Act 1974 that provided for separate trial for juveniles (s. 6), Shukur Ali was sentenced to death in July 2001 by the concerned special tribunal. In the death reference, the High Court Division on 25 February 2004 confirmed the death sentence. Shukur Ali appealed against this confirming decision, but the Appellate Division on 23 February 2005 rejected the appeal. A review petition to the Appellate Division was also rejected on 4 May 2005. In this background, a judicial review challenging the concerned law was instituted immediately (WP No. 8283/2005).
In BLAST v. Bangladesh (2010) 30 BLD (HCD) 194, the petitioner brought a public interest challenge against s. 6(2) of the 1995 Act for unconstitutionally prescribing the mandatory death penalty for the offence of 'rape and murder' committed by 'any person'. It was argued that the mandatory capital punishment is unconstitutional for breaching, among other rights, the constitutional right to life and liberty. Based on a contextualised constitutional interpretation, which is nevertheless informed of international human rights instruments and comparative constitutional decisions of some foreign top courts, the High Court Division declared unconstitutional the mandatory death penalty in the 1995 Act on the ground that the provision of mandatory death sentence interfered with the discretion of the judge and hence judicial independence. The Court also found the mandatory death penalty as a breach of one's constitutional right to life, but did not, at the end of the day, quash the death penalty already awarded by the trial court and confirmed by the Appellate Division of the Supreme Court. The Court (at p. 203) straightforwardly reasoned that, “sitting in the writ jurisdiction [they] cannot adjudicate upon the facts of the case and the punishment awarded by the competent Court […].”
Leaving the constitutional challenge to the mandatory death penalty here for a while, let us take the death reference case in the High Court Division State v. Sukur Ali (2004) (2004) 9 BLC (HCD) 238. In this death reference, the principal ground of contestation was whether Shukur Ali's trial by the Nari O Shishu Nirjaton Daman Tribunal rather than by a juvenile court incurred an illegality, warranting the setting aside of the conviction. In finding that no illegality occurred in the trial of the minor by the special tribunal, the High Court Division took a positivistic approach to statutory laws. It held that the overriding applicability of the 1995 Act (s. 3) made the Children Act 1974 inapplicable to offences under this special law. Once it endorsed the disputed trial, the next tough job for the court was to decide whether the death penalty under the 1995 Act could be imposed upon the minor. Here, the Court entered into the hard case scenario. It argued that since the Act of 1995 provided no alternative to the death penalty for the offence of rape and murder and since the punishment applied to “any person” convicted, it had no discretion to consider the accused's minority to commute the death sentence.
One may question the view of the Court that the special law of 1995 had overridden the Children Act, 1974, another special law of a sui generis kind. It is also doubtful whether by the term 'any person' the legislature intended to include children within its ambit, particularly when it comes to the question of awarding mandatory capital sentence. This argument may find a base in the different expressions in the 1995 Act namely, 'child' and 'any person', which are broadly used respectively for victims and those accused. Arguably, the absence of a legislative intention to include children within the meaning of 'any person' particularly for the punishment of mandatory death penalty can be presumed, inter alia, from Bangladesh's ratification of the Convention of the Rights of the Child, 1989, which prohibits the death penalty for children [art. 37(a)].
One may argue that these issues could not be raised and lawfully addressed in a death reference case, in which the High Court Division's role is to assess the 'due'-ness of the processes followed by the court below. Interestingly, however, the Shukur Ali Court recorded their “pangs and agony” while confirming Ali's death penalty. The Court also observed that this was a fit case to attract the President's clemency (at p. 25) under the Constitution. These observations lend a virtual recognition to the unjustness of the Act of 1995 and, probably, to the death penalty for juveniles. One might thus wonder whether the Court could have taken a sensitised approach to higher constitutional principles, particularly in light of Bangladesh's obligation under the CRC. There had been a series of early decisions with a direct import for the Shukur Ali's death reference, in which cases trials by special courts of youthful offenders under certain special laws were nullified. Particularly in BLAST & Another v. Bangladesh & Others (2002) 22 BLD (HCD) 206, the High Court Division held unlawful the conviction of a minor by a special tribunal under the 1995 Act. The Shukur Ali (2002) Court, however, distinguished this case and refused to follow its dictum, reasoning that while Shukur Ali made a voluntary confession, the concerned minor in BLAST v. Bangladesh made a 'non-voluntary' confessional statement. It is submitted that the Shukur Ali (2002) Court misplaced the distinction between holding a trial of a minor in a non-juvenile court and the reliance on non-corroborated evidence.
Appreciably, however, in a later case, the State v. Md. Roushan Mondal @ Hashem (2007) 4 LG (HCD) 12, in which a youth offender was convicted with the death penalty by a non-juvenile special tribunal under the Suppression of Violence against Women and Children Act, 2000 (which replaced the Act of 1995, keeping an alternate to the death penalty for the offence of rape and murder), the Court disapproved of the Shukur Ali dictum and compensated its jurisprudential deficiency. Informed of procedural safeguards under international human rights treaties, the Court held that a youth offender's right of trial in a juvenile court is a special right of “universal application” (at p. 30) which, having a coverage under Art. 28(4) of the Constitution, remains untainted by any special law like the Act of 2000.
Now we are reverting to the constitutional litigation, i.e., BLAST v. Bangladesh (2010). It is more than obvious that, by striking a constitutionality challenge to the legal provision that prescribed mandatory death penalty, the petitioner (BLAST) was trying to save Shukur Ali from the death sentence. As told earlier, the Court refused to decide on the legality of death sentence awarded to Shukur Ali and which came to be confirmed by the court of last resort (the Appellate Division) through appeal processes.
The BLAST v. Bangladesh (2010) decision calls for a number of plain observations. First, the Court did not nullify the conviction of death sentence, but prospectively invalidated the legal provision on the basis of which the death sentence was awarded and conformed. Although the Court did not make it clear, it perhaps endorsed the view that 'creation' of criminal law (if that at all be created) cannot be retrospective, as the concerned offender, when committing the offence, legally knew that a law prohibiting his/her action existed. By contrast, there is also an argument that, when a law is declared unconstitutional, the unconstitutionality has to be construed as having accrued from the very start, especially when constitutional rights are implicated. Interestingly, although the Court did not quash the awarded death sentence, it kept the sentence suspended until the disposal of the case. Second, while the Court declared unconstitutional the mandatory death penalty under a special law, it did not say anything about the constitutionality of section 303 of the Penal Code 1860 which, too, prescribed mandatory death penalty for the offence of murder when committed by a life term convict. One may draw a hunch that the Court was exercising judicial economy in that this was not an “issue” before it. Third, again maybe for the sake of judicial economy or because of the exclusive nature of the litigation at its hand, the Court did not scrutinize in detail the issue of legality of the trial of a minor by a non-juvenile court. For this, the Court remained content with the contention of the death reference Court (above) which thought that the special tribunal (the trial court) was a competent court as the issue of minority of Shukur Ali was not raised at the time of trial. By contrast, this may invite question as to the role of the court when 'injustice' is brought to judicial notice only at the appellate or review stages. Fourthly, the issue of constitutionality of death penalty for children when it is prescribed not as a mandatory punishment was not raised from the Bar and hence escaped judicial consideration. Fifthly, the Court retained, with reasons having been given, the jurisdiction even after the challenged law was repealed by Parliament.
The thoughts described in the preceding paragraph suggest that the Shukur Ali cases belong to the category of what can be called 'hard cases', adjudication of which requires the judge to navigate a plurality of competing legal and moral principles.
The writer is Associate Professor in the Department of Law at the University of Dhaka.
At the outset, I would like to note that analyses made above are in the academic tenor, and not intended to violate the sub judice rule that prohibits comments on cases awaiting judgment (as the case noted has been appealed to the Appellate Division where it awaits disposal).