Wednesday, February 1, 2012

9 Jan 2012: Azam challenge to charges

Atter the court took cognisance of the offences against Nizami, The tribunal heard the application filed by Golam Azam’s counsel Barrister Abdur Razzak seeking the quashing of the case against him

He said that on 26 December 2011, the Tribunal asked the prosecutors to resubmit the charge against Azam after ‘sorting it out properly’. He said that the law provides the Tribunal two routes - either to take cognizance of the matter or to just simply reject it. There is no other route in between.

He said that there was no procedure to send back a formal charge, as the tribunal had done.

Barrister Razzak made the point that his submission was to dismiss the ICT BD Case No. 6. But that this did not mean that the prosecution could not re-submit the charge again.

Justice Nizamul Haque intervened at one point and refered to, section 46 of ICT Act 1973, which gives the Tribunal inherent power to make such order that the tribunal may think fit for ends of justice and prevent abuse of process. 'If we dismiss this case the prosecution has option to submit a new charge on the same matter. For this reason, there is no point to dismiss the case,' he said.

In response, defence counsel Barrister Razzak replied, “The law under which this case is being tried is the harshest law ever. IT is the harshest law for following reasons: (a) The Evidence Act and the Code of Criminal Procedure are fully excluded which are considered as pillars justice. (b) All the fundamental rights and all the constitutional rights are excluded: 'My Lord, under Article 47, there is option to go to the Appellate Division of Supreme Court of Bangladesh which is a right of every citizen; even a visitor to Bangladesh has more rights.'

He said, so far as human rights and fundamental rights concerned, my client has none in relation to this tribunal.

He then said that he relies on Maxwell’s Interpretation of Statute which refers to the need for the  “Strict construction of penal laws.”

In relation to arguments about the use of the court’s inherent powers, Razzaq stated that, like section 46 of the ICT Act and rule 9 (1) of the ICT Rules, other courts can use their inherent powers e.g. section 161 (1) of Code of Civil Procedure and section 561A of Code of Criminal Procedure. However, ‘inherent power’ cannot be applied where there is specific law on a issue/matter and that is confirmed by a division bench decision of the High Court Division of Bangladesh Supreme Court in the case of Razia Khatun vs State which is reported at Bangladesh Law Decision (BLD), volume 24, page 183 where it was held that the ‘inherent power’ under section 561A could not be invoked as there was laws on that issue.

He requested the Tribunal not to invoke section 46 of ICT Act 1973.

Prosecutor Ziad Al-Malum then moved to speak, however, Justice Nizamul Haque indicated that he did not need to say anything on this matter. Subsequently he permitted him and therefore Ziad Al-Malum said that there was no option for the Defence to make such an application.

Justice Kabir then immediately read out the following order:
“The defence made an application to dismiss the matter under sections 9 and 22 of the ICT Act 1973 and rules 2, 4, 5 18A of the Rules of the Tribunal submitting that there is no such provision in the Act or in the Rules to return the formal charge to the Chief Prosecutor but the Tribunal returned to the Chief Prosecutor for resubmitting the same which is not permissible in law. The defence has further referred a case Razia Khatun vs State (24 BLD 183) where a division bench of High Court Division decided that ‘where there is specific provision in the Code of Criminal Procedure, the Court cannot apply the inherent power conferred by section 561A.’ Beside this the defence further relied upon rule 46 in support of their claim.

The prosecutor Ziad Al-Malum said in reply that there is no provision for such application and defence has no locus standi to make such application.

However, it is undisputed that in the earlier occasion the prosecution has submitted a formal charge against Professor Golam Azam and we found that they prepared the charge in a ‘scattered way’. In the order of 26.12.11, we did not say that there is no prima facie case; we just asked the prosecution to resubmit case in an orderly manner.

To us, the application is a complete ‘pre-mature’ application as the cognizance has not been taken yet against Professor Golam Azam - he is still just an accused of this case. Thus, this application is rejected under rule 23 of the Tribunal as the application has been made earlier than required.

Now, under section 3 (2) of the International Crimes Tribunal Act 1973, cognizance taken.”
In this stage, Justice Nizamul Haque, asked defence counsel Barrister Abdur Razzak whether or not he can take the responsibility to produce the accused Professor Golam Azam before the Tribunal?

Defence counsel Barrister Abdur Razzak said that he would taken the responsibly. In his words, “As a senior counsel of the Appellate Division of Supreme Court of Bangladesh, I am taking the responsibility to produce him any time and date fixed by this Tribunal. Justice Nizamul Haque then passed the following order:
“On 11.01.2012 at 10:30 am, defence counsel Barrister Abdur Razzak is directed to produce the accused Professor Golam Azam before the Tribunal, failing which an warrant of arrest will be issued against the accused. The prosecution is directed to provide formal charge and documents relied upon by the prosecution to the defence before the hearing.”

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