Does the country have a mandatory death penalty?

No. After a High Court ruling in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust in February 2010 (challenging the mandatory death penalty for rape) the mandatory death penalty in Bangladesh is probably unconstitutional.  We had not located the ruling as of March 12, 2010.

For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?

After a High Court ruling in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust in February 2010 (challenging the mandatory death penalty for rape) the mandatory death penalty in Bangladesh is probably unconstitutional. We had not located the ruling as of March 12, 2010.

Does the country’s constitution make reference to capital punishment?

Article 32 provides: “No person shall be deprived of life. . . save in accordance with law.” This could imply the constitutionality of the death penalty. Additionally, Article 149 saves the 1860 Penal Code except as modified by law made under the Constitution. This does not elevate the death penalty to constitutional status, but it is constitutional reference to a body of law that includes the death penalty. 

Does the country’s constitution make reference to international law?

Article 25 of the Constitution of the People’s Republic of Bangladesh recognizes the United Nations Charter, and Article 47 recognizes humanitarian law and provides that the Constitution will not limit the application of international treaties and the law of war. These provisions do not expressly recognize international human rights law, although they may imply some recognition of international human rights.

Have there been any significant changes in the application of the death penalty over the last several years?

The most significant change is that under a High Court ruling in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust in February 2010 (challenging the mandatory death penalty for rape), the mandatory death penalty in Bangladesh is probably unconstitutional,  limiting the ambit of the death penalty. Another significant change is that legislation enabling the death penalty for offenses committed by the Bangladesh Guard is pending. This is significant because of the number of massacres and other capital offenses carried out by Bangladesh Guard personnel. Reports also indicate that an anti-terrorism ordinance issued in 2008 may somewhat expand the death penalty for terrorism. Finally, a court ruling on November 19, 2009 (which we had not found as of March 12, 2010) indicates that public execution by firing squad could be a legal form of execution. This ruling may be less significant because reports indicate that authorities have not used it to carry out such executions. 

Is there currently an official moratorium on executions within the country?

No. 

Have there been any significant published cases concerning the death penalty in national courts?

While as of March 12, 2010, we had not found any published opinions, there are at least two important and recent cases concerning the death penalty.

In February 2010, reports indicated that the High Court ruled in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust (challenging the mandatory death penalty for rape), that the mandatory death penalty in Bangladesh is unconstitutional. Presumably, such an opinion discusses the protection against torture or cruel, inhuman or degrading punishment or treatment, or (somewhat weaker) due process and fair trial protections under Articles 32 and 35 of Bangladesh’s constitution.

In November 2009, reports indicated that the Bangladesh courts recently resolved a long-standing question of whether execution by firing squad was a permissible form of execution under the Bangladesh constitution, ruling that execution by firing squad is constitutional. Presumably, the opinion discusses whether such a method of execution is humane, although journalists reporting on the opinion concentrated on the fact that the government could choose to carry out the executions by hanging if using a firing squad proved too difficult, and the executions were in fact carried out by hanging. 

Where can one locate or access judicial decisions regarding the death penalty?

A searchable database of cases in Bangladesh is available at http://www.clcbd.org/. One limitation to this website is that it is limited to for-fee subscribers.

Are jury trials provided for defendants charged with capital murder?

No. There is no jury trial under the civilian court system; under the military system, a panel of officers sits in judgment. 

Brief Description of Appellate Process

The higher courts in Bangladesh are the High Court Division and the Appellate Court Division of the Supreme Court. Death sentences are submitted by the Court of Session to the High Court Division for confirmation. The Appellate Court Division has jurisdiction to hear all appeals from the High Court, and appeal lies as of right when the High Court has sentenced a person to death. 

What is the clemency process?

The Code of Criminal Procedure indicates that executions need not be approved by the executive. The main executive barrier to execution of a death sentence is the prerogative of mercy, granted by the Constitution and defined under the Code of Criminal Procedure and Penal Code.  Condemned individuals petition the President for clemency. Additionally, the government (which may mean the legislature or some other executive official) may commute death sentences. 

Are there lawyers available for indigent defendants facing capital murder trials?

Historically and recently, defendants rarely receive public defenders, although capital defendants have a statutory right to public defense. Bangladesh’s position (expressed in its reservations to the ICCPR) on public defenders is that Bangladesh aspires to fully implement the right to a public defender but that Bangladesh currently lacks the financial wherewithal to assure that right. 

Are there lawyers available for indigent prisoners on appeal?

Historically and recently, defendants rarely receive public defenders, although capital defendants have a statutory right to public defense. Bangladesh’s position is that Bangladesh aspires to fully implement the statutory right to a public defender but that Bangladesh currently lacks the financial wherewithal to assure that right.