After the tribunal dealt with the contempt application by the defence against the jonkhonto newspaper the tribunal moved onto dealing with the discharge application relating to the charges against Salauddin Quader Chowdhury. Prior to this the most recent hearing on this matter was on 22 February. (Please note that some of the summary of the arguments made here by the lawyer are not set out clearly, and will be clarified shortly.)
Chowdhury, the accused, from the back of the court, made a request to pass an order to transfer him to another jail. He said that the emvironment was not tolerable in jail and he was suffering from insecurity.
Advocate Fakhrul Islam, Chowdhury’s lawyer then got up and continued with his arguments.
He said that by the 1st Amendment of the Constitution, Article 47A has been inserted. It had prohibited a person to whom is specified in Article 47(3) to move the Supreme Court for any kind of the remedies. Article 47(3) of the Constitution, he said, relates 4 classes of people [member of armed, or defence or auxillary forces or who is a prisoner of war]
He then read from the debate in the parliament about the amendment.
Justice Nizamul Huq then said, ‘You’re trying to say the purpose of trial was only for those 195 people. Right?’
Advocate Fakhrul Islam then told the court that Article 47(3) of the Constitution refers to 4 categories effected by the First amendment but the International Crimes Tribunal Act-1973 refers to only 3 categories.
Justice Nizamul Huq: The Act stands as it is now.
Advocate Fakhrul Islam: My Lord, 1st amendment of the Constitution was passed before Bangabandhu. The bill was the will of the father of the nation. My Lord are we now trying to defy the intention of Bangabandhu.
Justice Nizamul Huq: It is the matter of Parliament.
Advocate Fakhrul Islam: My Lord; my humble petition is to let me go till the end.
Justice Nizamul Huq: Please proceed. The law stands as it is today.
Advocate Fakhrul Islam: My Lord, please look at page-91. The legal issue about the amendment is…
Justice Nizamul Huq: Mr. Fakhrul it is not the headache of the Tribunal to think about whether the amendment of 2009 of ICT Act was good or bad.
Advocate Fakhrul Islam: My Lord, it is a serious issue. Though this is not a Constitutional Court but no Court can go outside Constitution.
My Lord, please look at page-91. The ICT Bill has been passed by 255 vote, including Bangabandhu, there were no ‘no’ votes and 3 people abstained from voting. So, my humble submission is that other than 4 categories, no other categories of people could be accused. The whole question should be brought before the nation. Whether the amendment [allowing individuals to be prosecuted] is right or wrong. My colleagues were also surprised that how could parliament could deny the intention of Bangabandhu.
Please look at page-127—Sec-3 of the ICT Act defines the people who could commit the crime; this has been clearly said that these 3 classes of people would be fallen under the categories of the crime.
So, my Lord, in 1973 the intention which has been inserted could not be changed even after 200 years. Now there is another question. Please see Sec-4 of the ICT Act.—each and every person would be liable not specified. This Section 4 allows other persons as well as the people specified to be prosecuted. Under 1st amendment there were 4 categories and now under ICT Act there are 3 categories of people ['being a member of any armed, defence or auxiliary forces']
Sec 2 of the ICT Act defines auxiliary forces. So Section 4 connects with Section 3. So, you can not go beyond this. Now the question is whether the accused falls under any category. I’ll announce it towards the whole world that the intention of the Great Leader Bangabandhu has been frustrated.
Justice Nizamul Huq: The amendment has been passed in 2009.
Justice AKM Zaheer: The grounds for amendment of 1973 has been provided; now could you please read out the grounds for the amendment of 2009.
Justice Nizamul Huq: You’re going to the same point again and again that- the intention of Bangabandhu has been frustrated.
Advocate Fakhrul Islam: My Lord, please look at page 134. This is a Bill actually. It is a Bill to amend ICT-1973: ‘This Act has been promulgated for the trial of various kinds of offences committed on 1971. The present Government is committed about the trial, so this amendment bill has been passed,’ it states.
Justice Nizamul Huq: Please read Para-4.
Advocate Fakhrul Islam: To comply with the international standards the amendment bill has been passed.
Justice Nizamul Huq: Yes, this is the reason about which we’re talking about.
S.Q. Chowdhury, then asked to speak to his defence counsel.
After coming back from S.Q Chowdhury, Advocate Fakhrul Islam, then said: ‘the serious question is this. Can any person could be brought under this Tribunal, is this justifiable. Actually the object of amendment is for improvement or to bring new provisions. If the amendment is brought for any other purpose, the amendment will be totally illegal.
Justice Nizamul Huq: This tribunal was not formed to declare anything wrong and ultra-vires.
Advocate Fakhrul Islam: I’m not praying for that, My Lord. I’m saying whether the amendment which has curtailed the Fundamental Rights infringed the dream of Bangabandhu. I would like to submit a case My Lord.
Justice Nizamul Huq: Are you talking about 8th amendment case.
Advocate Fakhrul Islam: Yes, My Lord. The Judgment of 8th Amendment which is the type of judgment which reflects the wisdom of the citizens. So the power to amend should not be the power to construct.
Justice Nizamul Huq: Substance of the Natural Character of the constitution cannot be changed.
Advocate Fakhrul Islam: For this reason, I appreciate the case. It has also been stated that the fundamental character of the constitution cannot be changed.
Justice Nizamul Huq: So, now tell us whether there is any change of natural character.
Advocate Fakhrul Islam: By bringing another class of individuals - every citizens are included here, which infringes the Fundamental Rights.
He then referred to the General Clauses Act which is the part of the Constitution under Article- 152(2) (a) and asked whether the amendment made 30 years before is retroactive. I am going to give an example- In a Parent Act a footnote is given to show the date of promulgation. Section-5 of the General Clauses Act says that-Where any Act of Parliament is not expressed to come into operation on any particular day, and then it shall come into operation—in the case of an Act of Parliament to which this Act was applicable before the 26th of March, 1971, on the date on which it receives assent.
So, here it has been said the Act which has been adopted by the parliament has been approved by the President on 14th July, 2009 but after that it has been stated, it will come into effect as early as possible.
My humble submission is that since General Clauses Act is the part of the Constitution, so this amendment as a separate bill should be brought before parliament, like 15th amendment.
Justice Nizamul Huq: All laws promulgated by the parliament are legal, unless and until it is ultra-vires. What is your opinion regarding this?
Advocate Fakhrul Islam: This amendment has been passed two years ago. Since General Clauses Act is a part of the Constitution. Parliament could easily backdate the piece of law.
Please look at the Money laundering Act- 2009 which has been declared to be effective from 15th April, 2008.
Justice Nizamul Huq: Parliament could exercise backdate.
Advocate Fakhrul Islam then defined the term defined the term ‘Amendment’ and 'Amended' from various sources
So the term Amendment connotes the term ‘to correct’.
The tribunal was adjourned until 2pm
Fakhrul Islam continued with his discharge petition. He said that the Amendment which has been brought is fully outside the ambit of the constitution and has been brought for political purpose. He then read from a speech of Sheikh Mujibar Rahman: ‘Dear countryman, we have become the member of Commonwealth, UN general assembly and NAM during the last one year. We are now an established country and have a full support of these organizations. We have a good relation with our neighbouring country; we have pardoned the war criminals as well’
Justice Nizamul Huq said Fakhrul Islam then both told the lawyer that you “just have to submit before us why formal charge against the petitioner is not maintainable”
Fakhrul Islam: Yes, my lord I am trying to do it.
Then Ahsanul Huq Hena came to the dais and summed up the discharge petition of Fakhrul Islam.
Following this, an application for bail was argued:
Then, Justice Nizamul Huq adjourned by saying that “you will be given tomorrow another half an hour for completing your bail petition”.
Chowdhury, the accused, from the back of the court, made a request to pass an order to transfer him to another jail. He said that the emvironment was not tolerable in jail and he was suffering from insecurity.
Advocate Fakhrul Islam, Chowdhury’s lawyer then got up and continued with his arguments.
He said that by the 1st Amendment of the Constitution, Article 47A has been inserted. It had prohibited a person to whom is specified in Article 47(3) to move the Supreme Court for any kind of the remedies. Article 47(3) of the Constitution, he said, relates 4 classes of people [member of armed, or defence or auxillary forces or who is a prisoner of war]
He then read from the debate in the parliament about the amendment.
Justice Nizamul Huq then said, ‘You’re trying to say the purpose of trial was only for those 195 people. Right?’
Advocate Fakhrul Islam then told the court that Article 47(3) of the Constitution refers to 4 categories effected by the First amendment but the International Crimes Tribunal Act-1973 refers to only 3 categories.
Justice Nizamul Huq: The Act stands as it is now.
Advocate Fakhrul Islam: My Lord, 1st amendment of the Constitution was passed before Bangabandhu. The bill was the will of the father of the nation. My Lord are we now trying to defy the intention of Bangabandhu.
Justice Nizamul Huq: It is the matter of Parliament.
Advocate Fakhrul Islam: My Lord; my humble petition is to let me go till the end.
Justice Nizamul Huq: Please proceed. The law stands as it is today.
Advocate Fakhrul Islam: My Lord, please look at page-91. The legal issue about the amendment is…
Justice Nizamul Huq: Mr. Fakhrul it is not the headache of the Tribunal to think about whether the amendment of 2009 of ICT Act was good or bad.
Advocate Fakhrul Islam: My Lord, it is a serious issue. Though this is not a Constitutional Court but no Court can go outside Constitution.
My Lord, please look at page-91. The ICT Bill has been passed by 255 vote, including Bangabandhu, there were no ‘no’ votes and 3 people abstained from voting. So, my humble submission is that other than 4 categories, no other categories of people could be accused. The whole question should be brought before the nation. Whether the amendment [allowing individuals to be prosecuted] is right or wrong. My colleagues were also surprised that how could parliament could deny the intention of Bangabandhu.
Please look at page-127—Sec-3 of the ICT Act defines the people who could commit the crime; this has been clearly said that these 3 classes of people would be fallen under the categories of the crime.
So, my Lord, in 1973 the intention which has been inserted could not be changed even after 200 years. Now there is another question. Please see Sec-4 of the ICT Act.—each and every person would be liable not specified. This Section 4 allows other persons as well as the people specified to be prosecuted. Under 1st amendment there were 4 categories and now under ICT Act there are 3 categories of people ['being a member of any armed, defence or auxiliary forces']
Sec 2 of the ICT Act defines auxiliary forces. So Section 4 connects with Section 3. So, you can not go beyond this. Now the question is whether the accused falls under any category. I’ll announce it towards the whole world that the intention of the Great Leader Bangabandhu has been frustrated.
Justice Nizamul Huq: The amendment has been passed in 2009.
Justice AKM Zaheer: The grounds for amendment of 1973 has been provided; now could you please read out the grounds for the amendment of 2009.
Justice Nizamul Huq: You’re going to the same point again and again that- the intention of Bangabandhu has been frustrated.
Advocate Fakhrul Islam: My Lord, please look at page 134. This is a Bill actually. It is a Bill to amend ICT-1973: ‘This Act has been promulgated for the trial of various kinds of offences committed on 1971. The present Government is committed about the trial, so this amendment bill has been passed,’ it states.
Justice Nizamul Huq: Please read Para-4.
Advocate Fakhrul Islam: To comply with the international standards the amendment bill has been passed.
Justice Nizamul Huq: Yes, this is the reason about which we’re talking about.
S.Q. Chowdhury, then asked to speak to his defence counsel.
After coming back from S.Q Chowdhury, Advocate Fakhrul Islam, then said: ‘the serious question is this. Can any person could be brought under this Tribunal, is this justifiable. Actually the object of amendment is for improvement or to bring new provisions. If the amendment is brought for any other purpose, the amendment will be totally illegal.
Justice Nizamul Huq: This tribunal was not formed to declare anything wrong and ultra-vires.
Advocate Fakhrul Islam: I’m not praying for that, My Lord. I’m saying whether the amendment which has curtailed the Fundamental Rights infringed the dream of Bangabandhu. I would like to submit a case My Lord.
Justice Nizamul Huq: Are you talking about 8th amendment case.
Advocate Fakhrul Islam: Yes, My Lord. The Judgment of 8th Amendment which is the type of judgment which reflects the wisdom of the citizens. So the power to amend should not be the power to construct.
Justice Nizamul Huq: Substance of the Natural Character of the constitution cannot be changed.
Advocate Fakhrul Islam: For this reason, I appreciate the case. It has also been stated that the fundamental character of the constitution cannot be changed.
Justice Nizamul Huq: So, now tell us whether there is any change of natural character.
Advocate Fakhrul Islam: By bringing another class of individuals - every citizens are included here, which infringes the Fundamental Rights.
He then referred to the General Clauses Act which is the part of the Constitution under Article- 152(2) (a) and asked whether the amendment made 30 years before is retroactive. I am going to give an example- In a Parent Act a footnote is given to show the date of promulgation. Section-5 of the General Clauses Act says that-Where any Act of Parliament is not expressed to come into operation on any particular day, and then it shall come into operation—in the case of an Act of Parliament to which this Act was applicable before the 26th of March, 1971, on the date on which it receives assent.
So, here it has been said the Act which has been adopted by the parliament has been approved by the President on 14th July, 2009 but after that it has been stated, it will come into effect as early as possible.
My humble submission is that since General Clauses Act is the part of the Constitution, so this amendment as a separate bill should be brought before parliament, like 15th amendment.
Justice Nizamul Huq: All laws promulgated by the parliament are legal, unless and until it is ultra-vires. What is your opinion regarding this?
Advocate Fakhrul Islam: This amendment has been passed two years ago. Since General Clauses Act is a part of the Constitution. Parliament could easily backdate the piece of law.
Please look at the Money laundering Act- 2009 which has been declared to be effective from 15th April, 2008.
Justice Nizamul Huq: Parliament could exercise backdate.
Advocate Fakhrul Islam then defined the term defined the term ‘Amendment’ and 'Amended' from various sources
So the term Amendment connotes the term ‘to correct’.
The tribunal was adjourned until 2pm
Fakhrul Islam continued with his discharge petition. He said that the Amendment which has been brought is fully outside the ambit of the constitution and has been brought for political purpose. He then read from a speech of Sheikh Mujibar Rahman: ‘Dear countryman, we have become the member of Commonwealth, UN general assembly and NAM during the last one year. We are now an established country and have a full support of these organizations. We have a good relation with our neighbouring country; we have pardoned the war criminals as well’
Justice Nizamul Huq said Fakhrul Islam then both told the lawyer that you “just have to submit before us why formal charge against the petitioner is not maintainable”
Fakhrul Islam: Yes, my lord I am trying to do it.
Then Ahsanul Huq Hena came to the dais and summed up the discharge petition of Fakhrul Islam.
This tribunal is a good piece of legislature. Some laws are drafted well and some are bad. But, everything should be done in good faith. And my lord, discharge petition has been submitted as there is no prima facie case against the accused petitioner in formal charge.Bail petition by the Ahsanul Huq Hena
In formal charge it has been mentioned that Sallahuddin Kader chowdhury is only Intermediate pass. But the petitioner is B.A honours in Political Science. He was not involved in politics before 1979 or never was the member of any auxiliary force. From 1979 to till date he is the Parliament member under the Government Awami league, BNP and all other party. Actually “He is a brand by itself”.
Investigation, done after arrest is not acceptable anywhere. My lord, what it the motive of the Government?
Whether this case is barred by law or not? Why this case has not been filed before, why it has taken 37 years to file. This Government was in power before also. What about the care-taker Government? Why they did not take any initiative. So I think, there is a motive of this Government.
When a cognizance has been taken under sec.4 of the collaborators Act 1972 then ICT has no authority to transfer this case from the collaborators Act. It will be considered as violation of Article 35(2) since the same case is pending under the collaborators Act 1972.
My lord there are in total 25 charges, I am not saying to discharge all of 25 charges, I am only here to discharge of only 6 charges which are not maintainable.
My lord, is it possible that only these 6 persons were involved to the killing of 3 million people? My lord, petitioner has been arbitrarily detained in custody till framing of formal charge from the time of arrest.
Justice Nizamul Huq: Mr. Hena, an accused can never raise a question whether it is arbitrary or not.
A.H Huq: My lord, I am not the accused, I am the lawyer on behalf of the accused-petitioner.
Then A.H. Huq Hena said my lord, a fair trial should not be held by an incomplete formal charge. Formal charge is not considered as according to the law if the prosecution did not include proper investigation report to the formal charges.
Following this, an application for bail was argued:
Ground no.1: We are here for the provisional release of the accused. Accused-petitioner is the Member of Parliament from Chittagong 2 and son of Fazlul kader Chowdhury. There is no chance of absconding.
Accused-petitioner is highly qualified politician. Formal charge is baseless, motivated and without any substance.
He was the members of Parliament for last 6 consecutive elections. He was the parliamentary adviser of former Prime Minister Khaleda zia.
Ground no.2: Accused-petitioner has been arrested on 16.12.2010. Ramna Thana case no 55(6)2010. He is in custody for a long time.
People from Chittagong 2 constituencies has been suffering from different types problems e.g. they are not able to take any project or any type of initiative for the development since the accused-petitioner is in jail for a long time. We know it is Parliament member of that region who takes all initiatives for developments.
Investigation was started after the arrest of the petitioner which is not permissible at law. However, it cannot be complete formal charge for fair trial.
For being crime against humanity there should be a motive. Killing always is done in pursuance of a motive. If there is no motive, then it would be considered as accidental killing. But fact is that accused-petitioner was not the member of Auxiliary force, he was not in any way benefitted by this as well, and he was not involved in politics before 1979. Therefore, it is clear that there should be a motive for being crime against humanity which is totally absent in respect of this accused-petitioner.
Then, Justice Nizamul Huq adjourned by saying that “you will be given tomorrow another half an hour for completing your bail petition”.
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