Sunday, August 22, 2010

Tribunal under challenge this week

On Sunday 22nd August, the High Court is hearing a writ petition challenging the Constitution (First Amendment) Act 1973 which was passed on 15 July 1973 five days before the International Crimes (Tribunal) Act 1973 was enacted.

By amending Article 47 of the constitution, the amendment act had the effect of protecting the International Crimes (Tribunal) Act 1973 from constitutional challenge, dis-applies the application of certain fundamental rights from those who are detained and prosecuted under the Act, and restricts these people from seeking any remedy from the High Court.

The writ which has been lodged on behalf of Mohammad Quamruzzaman and Abdul Quader Mollah (two of the four Jamaat leaders initially detained by the Tribunal) and will be argued by Barrister Abdur Razzak, the assistant secretary general of the party, as well as one of its leading lawyers.

The writ challenges the constitutionality of the amendment, the constitutionality of the 1973 Act itself, and questions the legality of the way in which the Tribunal is operating.

Two days later, on Tuesday 24th - assuming proceedings are not stayed as a result of the writ petition - the Tribunal itself will hear a number of applications from defence lawyers including ones that challenge the legal basis by which the Tribunal issued arrests warrants upon the first four detained Jamaat leaders.


  1. Hi David,
    Great niche for a blog.

    You wrote:
    "The writ which has been lodged on behalf of Mohammad Quamruzzaman and Abdul Quader Mollah (two of the four Jamaat leaders...)"

    In fact, these two petitioners became known in the public domain for an altogether different reason. They have been detained, so that "allegations" of international crimes (ie, war crimes, genocide, crimes against humanity) against them during Bangladesh Liberation War in 1971 can be investigated. Not becuase they happen to be Jamat leaders. Surely there are thousands of Jamat Leaders who are unlikely to face prosecution, because no such allegations are hanging over their head! Apart from this, your piece accurately reports Jamat's side of the writ petition. Can there be a counter argument? I wonder!

    This may come as a great shock to many, but people of Bangladesh have been carrying this burden of impunity for a very very long time, watching war criminals live and thrive, until this long overdue justice process has started. Now that the process has started, it is only predictable that people facing prosecution for such serious offences would do everything in their power and resource to challenge the law (and every piece of evidence) that investigates/prosecutes them. Would you agree?

  2. I of course agree that the reason for these men's detention is because there are allegations that they have committed international crimes during the 1971 war - not simply because they are Jamaat politicians. I think this is pretty clear if you read the blog as a whole rather than one particular posting - but I will endeavor not to ellipse the two in future postings.

    I do think however, the early detention of these men was somewhat problematic. Putting to one side the issue of the questions about the legal basis of their detention (I will write a seperate blog on this) - what were the grounds for the detention?

    The prosecution argued in court (following rule 9 of the rules of procedure) that this was about ensuring that these men do not interefere with the investigation. They did not, however, as far as I understand it, give any evidence to the court that they were interfering with the evidence or were going to.

    The Investigation agency has been in existence since March, and I have not heard anything from them in the media to say that the investigations were being hindered or obstructed.

    I am not saying that these men would not have tried - but in order for them to be detained, clear and cogent reasons surely have to be given for their detention, and the prosecution team certainly did not give them in court. The Tribunal just simply accepted an assertion that their detention was necessary.

    In my view, it appears, that they are being detained because the government, having detained them on other matters, feared that they might get bail on these cases - and did not want them out of jail.

    I agree that accountability has been long awaited in Bangladesh - and also that it is inevitable that those accused, or supporters of those accused, will take steps to challenge the process. But as one international lawyer mentioned to me, challenges can be good for the process - they help clarify the law, and test the adequacy of the process.

    In this blog I am trying to report what happens in the Tribunal as objectively as possible, as well as, where appropriate, add my own thoughts to what is going on. This will therefore include reporting of these challenges.