Monday, July 2, 2012

13 Mar 2012: Chowdhury application order

The date was set for an order relating to a number of applications made by Salauddin Quader Chowdhury. Advocate Fakhrul Islam for Chowdhury asked the court if the tribunal could please give an order for all of the matters except discharge petition, as the petitioner was absent from the courttoday.

The chairman said, ‘No, Mr. Islam. You’ve linked all the petitions in such manner that- we could not make any delay. Petitioner’s presence is required on the day of framing charge. So, we hereby give order.’

Justice Nijamul Haque passed the following order (summary)
In an application- Mr. Fakhrul Islam submitted on behalf of the Petitioner that on 24th January, 1972 The Bangladesh Collaborators Order-1972 President’s Order No: 8 of 1972 was brought into effect to punish and prosecute certain persons, individually or as a member of organizations directly or indirectly, who have been collaborators of the Pakistan Armed Forces, which had illegally occupied Bangladesh by brute force, and have aided or abetted the Pakistan Armed forces of occupation in committing genocide and crimes against humanity and in committing genocide and crimes against humanity and in committing atrocities against men, women and children and against the person, property and honor of the civilian population of Bangladesh and have otherwise aided or co-operated with or acted in the interest of the Pakistan Armed Forces of occupation or contributed by any act, word or sign towards maintaining, sustaining, strengthening, supporting or furthering the illegal occupation of Bangladesh by the Pakistan Armed Forces or have waged war or aided or abetted in waging war against the People’s Republic of Bangladesh.

In the said Act Collaborator means a person who falls under the definition mentioned in Section-2(b) of the Bangladesh Collaborators Order-1972 [then he read out the section and its explanation]. After that- by the General Amnesty Order the Act was repealed for all other offences except some acts which are offences under- Penal Code. Then the 5th Amendment of the Constitution was done, by which the following order has been revived. So the President’s Order No: 08 of 1972 was brought back.

Here the learned counsel submits that where there are cases pending under the following Bangladesh Collaborators Order, so the accused petitioner should not be tried under the same tribunal under another ICT Act-1973.

And Mr. Zaed Al Malum, from the Prosecution team has submitted that-here the allegation is different in the following case. Whether he is a Collaborator or not, it is not a subject matter which is ought to be dealt with by the tribunal. In the instant case, the case is that whether the petitioner is to be tried under the ICT Act-1973. So, we should concentrate on that matter.

Moreover, he submitted that invocation of the President’s Order- 08 of 1972 would not be discussed here.

Then the prayer of transfer of case won’t be acceptable here. As the offences and allegations are quite different in the cases under the Bangladesh Collaborator’s Order-1972 and ICT Act-1972, so the petition is rejected.

Then another point which has been raised on behalf of the petitioner’s is that- whether the tribunal is complying with the International Standards. So- the petitioner has submitted a review petition. In regard of the allegation we’re in the opinion that- when the law was passed it was done after following various International Customary Laws. The order of Mr. Sydee is reaffirmed here. [Then he has mentioned the insertion of various International Treaties, conventions like- ICCPR, UDHR, Geneva Convention, Rome Statute, Convention against Torture. etc]

So, there is no ground to adjourn the case on the ground of complying with the international standards. We’re in the opinion that- this kind of submissions are to delay the matter.

As such the petition is rejected.

Another point which was raised is that- under the Rule-37 of the International Crimes Tribunal Rules of Procedures-2010 they have submitted that as the allegations made are not true, and as there was a tripartite agreement. And the accused was not any member of auxiliary forces. And, the 6 cases of the accused cannot be brought under this ACT. And it has also been submitted by the defence party that- the importance of 15th Amendment and the revival of Collaborators Order should be noted, so, the matter would be tried under another tribunal formed under the Collaborators Order.

The defence has also submits that- the word “individual or group of individual” was brought by a malafide nature. They further submitted that- an act which has been amended in 2009; cannot be brought against offences of 1971. Here he referred BDR mutiny case.

In response of this submission of the defence, the prosecution submitted that- the question of revival of the Collaborators Order and the amendment of the Constitution cannot be dealt with by this tribunal.

The defence party also submitted that- the case is not sustainable by law as the tribunal is a domestic tribunal. The petitioner also submits that- the allegations are not true.

The petitioner also pointed out the matter of Double Jeopardy.

As regard the principle of Double Jeopardy we’ve already said that 3 of those cases are under the Collaborators Ordinance and the rest are under Penal Code. So, those six cases cannot be tried under this tribunal. Article- 32(2) of the Constitution reaffirms the principle of Double Jeopardy. We’ve found that offences under Collaborators Ordinance and the Penal Code are different of this tribunal. On that case the accused petitioner was prosecuted and only prosecution is not a bar for next case to be run independently. So, the 6 cases cannot stand under this Act.

The offence was done on 1971 and the Act was amended on 2009. The petitioner prayed that the word “individual or group of individual” was not there before 2009. In support of his submission he referred also the case of BDR carnage. And he opined that- here in that case like the BDR case; the ICT Act-1973 cannot be invoked by retroactive act.

Here, at this stage- we’re of opinion that- the discharge order cannot be maintained here.

Another application from the defence side was about the Bail petition for the accused petitioner. Mr. Ahsanul Haq Hena, the defence counsel opines that the petitioner was arrested on 16th November, 2011 by the Ramna Police Station Case No: 55 of 2010. It was further submitted that—in 1971, the accused petitioner was a young student and in no way involved with politics. And he was the son of famous politician Fazlul Kader Chowdhury. Mr. Salahuddin Quader Chowdhury was never persecuted. The accused petitioner is a patient of heart and he got 3 heart attacks already.
Here, Mr. Malum, prosecutor in response to the submission of the defence counsel opines that- if the petitioner was having any heart diseases then he would be treated properly in the Prison Hospital.

Here the application for the bail petition is rejected.

There was another prayer for the transfer of his Prison from Kashimpur-2 Prison.

So, we’re in the view that- the application for the transfer of prison is to be made before the Jail Authority, then the authority would consider the matter. So, we’re going to reject this petition.
Justice AKM Zaheer:  then said he would like to set out his view on when the accused needs to be present. He said, no formal application for discharging matter should be made in the absence of the petitioner. If such application is made by the accused then it should be disposed of before the accused. It is the right of the accused to hear and know why this application has been rejected. So, my view is to keep the order of disposing the discharge matter and the order should be passed in presence of accused, in the date of hearing order and charge matter.

The chairman said that the next date for hearing on this matter would be 20th March, 2012

The tribunal then dealt with a matter relating to Golam Azam


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