In a landmark verdict, the High Court (HC) on Monday declared illegal and unlawful to keep detained convicts in the condemned cell (blind cell) of the prison before the finalization of their death sentences by the Appellate Divisions verdict as well as the mercy petition.
The HC bench also ordered the jail authorities to move such convicts from condemned cells to ordinary cells within the next two years.
At the same time, the HC bench also declared Rule 980 of the Jail Code unconstitutional.
The High Court bench comprising Justice Sheikh Hasan Arif and Justice Md Bazlur Rahman delivered the verdict after hearing on a writ petition jointly filed by three death row convicts.
The HC bench also directed the prison authorities concerned including Supreme Court Registrar General to provide information about death row inmates (journalists, researchers) as per the law.
Apart from this, the HC bench asked the authorities concerned to include the information of these convicts in the annual report of the Supreme Court.
It also ordered the authorities concerned of the government to consider its observations while it will enact the Prison Act so that the observations of the judgment to be reflected into the new law.
Advocate Mohammad Shishir Manir appeared for the writ petition while Attorney General AM Amin and Deputy Attorney General Amit Talukder represented the state.
During the hearing on the rule, the HC took the expert opinion of senior advocate Prabir Niyogi and SM Shahjahan.
The High Court verdict observed that a person cannot be called a death-sentenced convict and he cannot be kept in condemn cell before the death sentence is finalised. Only after the judicial process (death reference, appeal and review) and administrative process (appeal to the President for clemency), the authority could keep a death-row convict in condemn cell.
Explaining the High Court verdict, Shishir Manir said there are some necessary legal steps that must be taken before the execution of the death penalty.
First, as per the section 374 of the Criminal Procedure of Code (CrPC) the approval of the High Court Division is mandatory to carry out the death penalty. There is also a provision of filing appeal with the High Court against the lower court verdict.
Secondly, if the High Court Division upholds the death penalty, the convicted person can also file appeal directly to the Appellate Division as a constitutional right. Thirdly, under Article 105 of the Constitution, there is a legal opportunity to appeal review petition against the apex court verdict and finally the convict can also seek presidential clemency before the execution of the death penalty, He also said that a hearing must be conducted before a person is placed in solitary confinement for illness or special reasons. This is the exception.
Earlier on September 2 in 2021, the writ petition was filed by three convicts challenging the legitimacy of keeping convicts in the condemn cell before confirming their death sentences.
The HC, on April 5, 2022, issued a rule asking the government to explain why regulation 980 of Bangladesh Jail Code, which says such convicts must be kept in condemned cells, should not be declared unconstitutional.
It also asked the government to explain why it should not be declared illegal to keep the accused in a condom cell before the death sentence is confirmed.
A total of 1,987 death row convicts, including 1,933 males and 54 females, were in condemned cells at prisons across the country till September 20, 2021, said the petitioners lawyer Mohammad Shishir Manir, citing a statement by inspector general of prisons office.
These convicts are living in inhumane conditions which are contradictory to article 35(5) of the constitution, the lawyer added.
On December 12 last year, the IG of prisons submitted a report to the apex court, saying death row convicts are lawfully kept in the condemned cells due to security reasons.
The High Court on 12 December last year concluded the hearing on the rule and kept the matter pending for delivering its verdict. Finally, the HC bench on Monday delivered its verdict, which terms the lawyers as historic one.
