Harmonizing the Penal Code 1860 With International Human Rights Obligations: A Bangladesh Perspective

The conflict between Bangladeshi colonial criminal law and the ongoing obligations of a modern constitution and human rights international treaties is further illustrated by the continued reliance on the Penal Code 1860. However, many provisions of the Penal Code are in conflict with constitutional guarantees and international standards although Bangladesh has ratified several important international human rights instruments including: International Covenant on Civil and Political Rights, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Torture), Convention on the Elimination of All Forms of Discrimination against Women. Other common examples also include the mandatory capital punishment, sedition and criminal defamation, solitary confinement, and gender-specific crimes that reflect a nineteenth-century punitive mentality at odds with contemporary values that favour human dignity, proportionality of punishment to the crime committed, legality and equality. The case for harmonization of the Penal Code with national, constitutional and treaty obligations is good law not withstanding national policy debates. By means of doctrinal analysis, comparative studies between post colonial criminal laws introduced in India and the United Kingdom as well as an examination of decisions by the Bangladesh Supreme Court, the article points out central areas of incompatibility and assesses the limits of judicial interpretation in addressing legislative inertia. This also corroborates that socio-political, administrative and institutional constraints such as competing political priorities, bureaucratic bottlenecks and inadequate institutional capacity have led to reforms being delayed. Taking a cue from the recent experience of criminal law reform in India, we suggest through this article that a phased recodification could be effectively accomplished by relying on expert led legislative scrutiny, evidence based drafting and meaningful stakeholder consultation, institutional capacity building, judicial training and public awareness. It finds that although judicial interpretation has alleviated some human rights problems, only through comprehensive legislative reform can the structural incompatibilities between the Penal Code and the Constitution of Bangladesh as well as international human rights standards be eradicated.