Sadiya S. Silvee, Research Assistant at Bangladesh Institute of Law & Int’l Affairs :

Article 111 of the Constitution of Bangladesh states, “the law declared by the Appellate Division (AD) shall be binding on the High Court Division (HCD) and the law declared by either division of the Supreme Court (SC) shall be binding on all courts subordinate to it.” This means the judicial discipline requires the HCD to follow the decision of the AD and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent [Bangladesh Agricultural Development Corporation (BADC) vs. Abdul BarekDewan 8More on Page 7, Col
(From Page 8) being dead his heirs: Bali Begum and others, 19 BLD (1999) AD 106]. To analysis, the application of Article 111 of the Constitution of Bangladesh in the criminal justice system, particularly the binding effect of the law declared by the HCD on the subordinate courts, the question – whether the subordinate courts follow the decision of the HCD is scrutinized. In doing so, the Death Reference (DR) Cases are contemplated.
As per the records of the Death Reference Branch of the HCD, there were 580 DR cases before the court in 2016. Of which 419 were pervious pending cases and 161 were newly submitted before the court for confirmation. Of these 580 DR cases, HCD could hear only 45 cases. Out of these 45 cases, 35 cases were studied from which it is ascertained that 32 DR cases were rejected. Which means, the rejection rate was approximately 91.4%. Similarly, in 2017, HCD could hear only 66 cases, of these, 50 cases were studied, and the rejection rate was approximately 60 %. This data raises a significant question regarding the grounds on which these DR cases were rejected.
In Salauddin vs. State [32 DLR (1980) HCD 227] quested for extenuating and aggravating circumstances. These extenuating/mitigating and aggravating circumstances were also considered by the AD in Dipok Kumar Sarker vs. The State [40 DLR (1988) AD 139]. A similar view was taken by the HCD in State vs. Bidhan Chandra Roy[66 DLR (2014) HCD 500]. So, what are these extenuating and aggravating circumstances?
Although our criminal legislation has not acknowledged any specific factors as extenuating/mitigating or aggravating circumstances, but our SC has acknowledged some factors like age, no past record, not taking any leading part, mental health and physical health as extenuating/mitigating circumstances in cases namely, Rahmat Ali alias Shukkur vs. State [18 BLC (2013) AD 109], State vs. Md. MasudRana&Anr [35 BLD (2015) HCD 531], State vs. Dr. Md. Nurul Islam [ 22 BLT (2014) HCD 101], State &Ors. vs. TahazzelHossainNura&Anr [35 BLD (2015) HCD 457] and so on. Similarly, it has acknowledged brutality, cold-bloodedness, pre-planned manner, mastermind and direct participation as the aggravating factor in cases namely, State vs. MdFazlurRahmanTonmoy [61 DLR (2009) HCD 169], ShahidUllah, Shahid&Ors vs. The State [ 4 SCOB (2015)AD 11], State vs. Md. Rayhanul Islam Khan &Ors [32 BLD (HCD) 184] and so on.
As Article 111 of our Constitution suggestions, all these judgements are binding on our subordinate courts. But, does our subordinate courts consider these extenuating/mitigating and aggravating circumstances before awarding a sentence? If so, then, why in 2016 the HCD considering age and no past record of criminal activity has rejected the death sentence in the State vs. Md. Rubel and Others [Death Reference No. 67 of 2010]. A similar view was taken by the Division in 2017 in the State vs. Md Sharif and Md. Mintu Khan [Death Reference no. 92 of 2015] and the State vs. Md. Nasiruddin @ Anik, Md. Akhter Hossain and Md. Shahid [Death Reference no. 01 of 2012]. Furthermore, considering the lack of aggravating factor, HCD has rejected the death sentence in the State vs. Md. Chand Mia [Death Reference no. 36 of 2011]. Additionally, considering the mental state of the HCD has rejected the death sentence in the State vs. Md. Monu Mia [Death Reference No. 39 of 2012] and the State vs. Md. Harun [Death Reference No.21 of 2012].
The rejection of these DR caseindicates that the respective subordinate courts have acted in ignoranceof the decisions made by the SC. Isn’t it a violation of Article 111 of our Constitution? But, can we posit that the subordinate courts have acted in ignoranceof the decisions made by the SC, when it is the responsibility of the Advocates to guide the courts towards justice. Who shall be accountable for such ignorance is and will remain as a rhetorical question. But this demonstrates that the practice in SC and subordinates are inconsistent. It is noteworthy to mention here that, justice can only be assured when the justice ensuring system, itself, adhere to the “rule of law”.