Punishment for Homosexuality in Bangladesh
On 25 April 2016, prominent gay activists Xulhaz Mannan, the founder of Roopbaan, Bangladesh's first lesbian, gay, bisexual, transgender, and intersex (LGBTI) magazine, and Mahbub Rabby Tonoy, the general secretary of the group, were killed mercilessly by extremists for promoting LGBT rights in Bangladesh. Islamist extremist groups, more specifically, Al-Qaeda in the Indian Subcontinent (AQIS) claimed responsibility for the killings of the LGBT activists.
Bangladesh is one of 75 countries that currently have laws criminalising homosexuality. Here, the highest punishment for "unnatural intercourses" is life imprisonment, but lesser jail terms of up to 10 years in prison and fines might also be handed out under the existing law.
According to the Section 377 of the penal code, voluntary carnal intercourse against "the order of nature with any man, woman or animal" is punishable with imprisonment for life or with imprisonment which may extend to ten years and fines.
This phrase is interpreted to mean all forms of sexual activity other than heterosexual penile-vaginal intercourse.
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described, the Section 377 also explains.
In December 2008, Bangladesh was one of 59 countries that signed a statement opposing LGBT rights at the United Nations General Assembly. The laws of Bangladesh prescribe punishment for voluntary carnal intercourse against "the order of nature with any man, woman or animal under the Penal Code 1860 and only State has the authority to impose punishments sanctioned by law.
Moreover, the Constitution of the People's Republic of Bangladesh provides for certain rights to which every citizen is entitled. For example-
As per Article 11 of the Constitution-
The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the
people through their elected representatives in administration at all levels shall be ensured.
Article 31 of the Constitution provides that - To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
Article 32 recognizes that no person shall be deprived of life or personal liberty except in accordance with the law. Moreover, Article 39 of the Constitution recognizes the freedom of thought and conscience of every citizen.
Therefore, that whomsoever is committing a punishable offence, (s)he should be subjected to punishment as prescribed in the penal law of Bangladesh. That offender is also entitled to enjoy the rights guaranteed under the Constitution, for example the fundamental human rights and freedoms and respect for the dignity and worth of the human person, protection of law, right to life and personal liberty.
Moreover, as per Article 35 of the Constitution, no person should be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence and no person should be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
The Penal Code 1860 under section 53, recognizes five types of punishments for offences committed under the laws of Bangladesh and they are- Death;
Imprisonment for life; Imprisonment, Forfeiture of property; and Fine.
Therefore, the punishment imposed upon the LGBT activist in Xulhaz Mannan case is not recognized under the laws of Bangladesh and also the people who imposed the punishment for committing the offence do not have the authority to do the same at least as per the laws of the land.
Tasmiah Nuhiya Ahmed is an Advocate, Supreme Court of Bangladesh, and Research Assistant (Law) Bangladesh Institute of Law and International Affairs (BILIA)