Tuesday, July 3, 2012

15 Apr 2012: Chowdhury review application

The tribunal started late due to the oath taking ceremony of the newly appointed 15 Justices of the Supreme Court.

Golam Arif, the Chief Prosecutor, then came on the dais and prayed to the tribunal to transfer the cases of Mr. Md. Quamaruzzaman, Abdul Quader Mollah and Mr. Abdul Alim to the Tribunal-2.

The tribunal chairman said that the matter will be settled the following day.

The court then heard the review application on behalf of Salauddin Quader Chowdhury relating to the order given on 13 March 2012. This involved a number of written applications which are all set out below
1. That this review petition is preferred by the petitioner since order on discharge petition was delivered in the absence of the petitioner on 13.03.2012.

2. That on 5th of March 2012 the Hon’ble Tribunal was pleased to hear arguments by the defence and by the learned prosecutor and the Hon’ble Tribunal was further pleased to pass an order that on 13th March 2012 the Tribunal would pass order on all application but the application for discharge.

3. That in the order of 5th March 2012 the Hon’ble Chairman of the Tribunal was also pleased to pass another order that the petitioner should not be produced on the 13th and for which on 13th of March 2012, the petitioner was not produced.

4. That two Members and Chairman of the Tribunal usually sat in the bench of the Tribunal and the Hon’ble Chairman started delivering order on six petitions including the discharge petition.

5. That in the order of the discharge petition as the learned counsel could take note of from which it appears that Chairman of the Tribunal did not take judicial notice of so many important legal issues raised by the defence counsel for which petitioner could be discharge from the allegations and rather stated issues which the prosecution did not mention at all.

6. That the learned counsel of the petitioner never contended that this tribunal should declare a piece of legislation or any word or words therein be declared ultra virus to the constitution as being malafide rather the defence counsel contended that whether the petitioner could be brought within the ambit of International Crimes Tribunal Act (Amendment) 2009 which was brought without the mandate of the constitution.

7. That the defence counsel also raised fundamental legal issues that under Article 152(2) the General Clauses Act 1897 “shall apply in relation to a) this constitution as it applies in relation to an Act of Parliament) and for the interpretation as to when an Act of parliament should come in to operation was also put forward in the argument but the Hon’ble Chairman of the Tribunal totally, utterly and deliberately ignored this legal issues.

8. That the learned Prosecutor did not in his reply said anything about the application of section 5 of the General Clauses Act either.

9. That since the learned prosecutor remained silent about the application of the General Clauses Act 1897 which means that the learned prosecutor agreed with the contentions of the defence counsel.

10. That in the order passed by the Hon’ble Chairman jumped to the conclusion in rejecting the discharge petition without considering legal issues favoring the petitioner.

11. That the Special Reference No 1 of 2009 about the Philkhana Carnage is an analogy that substantive law should be applied prospectively not retrospectively and the opinion expressed by the Appellate Division was not disregarded neither by the Hon’ble president nor by the government.

12. That on the basis of the opinion of the Appellate Division in Special Reference No 1 of 2009 despite the power, the government did not include ‘BDR’ in section 5 of the Army Act 1952 because as substantive law will start its operation on the day forthwith it came in to effect.

13. That by the judgement of the 8th Amendment the word ‘Amendment’ has been explained and it has been upheld by the judgement of the 5th Amendment.

14. That the International Crimes Tribunal Act 1973 was designed to be a military court to try 195 Pakistani Military officers but 37 years later, whole purpose and objective of the law was changed by the International Crimes Tribunal Act (Amendment) 2009.

15. That the review petition is justified because one of the members by his opinion on the 13th March 2012 immediately after the order which was read out by the Hon’ble Chairman expressed that he disagreed that the order on discharge petition should have been delivered in the presence of the petitioner.

16. That the election held under martial law in 1970 and the candidate who want to the election and returned to the National Election of Pakistan from the National Constituencies of the province of East Pakistan a gazette was published on December 18, 1970 and in that Gazette Sheikh Mojibur Rahman was elected from the NE-III, (Dhaka-VIII) and NE- 112 (Dhaka-IX)

17. That Gazette was published on September 1971 in which to fill the seat of constituency which has become vacant by reason of the person elected from such constituency having being disqualified under Bangladesh of clause (2) of article 9 of legal frame work order 1970, Dhaka-VII and Dhaka IX was not made vacant and Sheikh Mojibur Rahman was an elected member of Pakistan National Assembly. Whereas Fazlul Quader Chowdhury in the election of 1970 from NE 157 (Chittagong) was not elected but Mr. Md. Khaled was elected defeating Fazlul Quader Chowdhury.If Mr. Fazlul Quder Chowdhury had good connection with the then Pakistan Military Rules, Certainly Chittagong consultancy would have been declared vacant to make Mr. Fazlul Quder Chowdhury as a member of National Assembly.

18. That Mr. Fazlul Quder Chowdhury had no good connection with the ruler of Pakistan and the glaving example is the Gazette published on May 27, 1971 by a which the fund of convention Muslim League was seized. Had Mr. Fazlul Quder Chowdhury being a good friend of General Yahia Khan, the bank accounts of the convention Muslim League would not have been sized.

19. That during liberation war on 10th April 1971 elected parliament members of 1970’s election from East Pakistan from Bangladesh Government. The cabinet took oath on 17th April 1971 at liberated area in Mangrove of Baiddanath Tola, Meherur, Kustia, renamed as Mujib Nagar and this Mujib Nagar government adopted “proclamation of independence” on 10th April 1971.

20. That the declaration of 17th April 1971 specifically stipulated that it had the authority to levy’s excess and expend moneys within territory of Bangladesh and summon and adjourn the constituent assembly.

21. That there is nothing on learned that the constituent assembly was ever summoned to take any decision about war or any other matters between 17th April 1971 to 16th December 1971.

22. That the liberation was fought on our soil and the war was concluded on 16th December 1971 on formal surrender of the Pakistan Army lead by Lt. General A.A.K Niazi to Lt. General Jagojt Singh Arora.

23. That all prisoners of war 93,000/- in number and the war booty were taken to the custody of Indian Army. At no time the provisional government of Bangladesh had any control or custody of the prisoner of war (POW).

24. That the provisional government of Bangladesh had played no part in the transfer of Pakistan prisons of war (POWS) by Indian Army from Bangladesh territory.

25. that on January 21, 1972 the Bangladesh collaborator (Special Tribunal) Order, 1972 (PO No. 8 of 1972) was brought into operation for the purpose which has been stipulated in the preamble which reads as follows:

26. That under section 1(3)(6) gives the definition collaborator means a persons who has participated with an aided on abetted the occupation Army is maintaing sustaining strengthening, supporting or furthering the illegal occupation of Bangladesh by such Army.

27. That under this order of P.O 8 of 1972 37,000/- were arrested of which against 848 collaborators charge sheet was submitted and of which 752 were convicted and sentenced to different jail term of which 19 were sentenced to death and there were executed. ON 30th November 1973 Bangladesh Sheik Mujibur Rahman was pleased to declare General Amnesty and 26,000/- were released from jail upon the declaration of General Amnesty, 11,000/- collaborates were released from jail upon legal process.

28. That President Sayem on 31st December 1975 brought the Bangladesh collaborates (Special Tribunal) (repeal) Ordinance 1975. Thus P.O 8 of 1972 was repealed.

29. That the prisoners of war were taken to Indian Custody and on Indian soil and they were kept there until they were released by virtue of simla agreement except 195 Army personal. The simla agreement was signed between India Ghandi, Prime Minister India at Julfiqur Ali Bhutto, the Prime Minister of Pakistan.

30. That the Simla agreement was a bilateral agreement between Indian and Pakistan and Bangladesh was nighther a party nor a witness to the Simla agreement.

31. That a bill was introduced before the parliament 1973 to amend the constitution as the constitution 1st (Amendment) Act, 1973 which reads as follows “The bill seeks to amend the constitution so as to enable the stale to make laws to provide for trial of persons accused of committing genocide, crime against humanity, where crimes and other crimes orders International law.

32. That during the debate of the proceeding of the 1st amendment including a person was omitted by a motion brought by Abdullah Sarkar.

33. That to materialized the objective and reasons of the bill of the constitution 1st amendment Act, 1973 was enacted on 18th July 1973 with retrospective effect and to fulfill the purpose of the 1st amendment and to bring the accused of to trial the International (remains ) (Tribunal) Act, 1973 was enacted on 20th July 1973. The statement of objection and reasons in the bill of the International Crimes (Tribunal) Act,1973 introduced in the parliament .

34. That the International Crimes (Tribunals) Act, 1973 came into effect on 20th July 1973 and section 3(1) of the said Act reads as follows;

35. A Tribunal shall have the power to try and punish any person irrespective of his nationality who, being a member of any armed, defense or auxiliary forces commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act of the following crimes and Article 47(3) of the Constitution reads as follows: Notwithstanding anything contained in this Constitution , no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defense or auxiliary force or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any law is inconsistent with, or repugnant to, of the provisions of this Constitution.

36. That it is stated that during the debate in Parliament on 17th July 1973, about the bill for the International Crimes (Tribunals) Act, 1973 Mr. Serajul Huq among other things stated:

“Mr. Speaker, Sir, I must say that no country has ever done this and this is why we are pioneer in this line. If we were revengeful on them we could bring 70,000 for trial but only 195 persons will be tried only to vindicate our sense of justice. We believe “rarer action lies in virtue not in vengeance” and Sree Monoranjan Dhar in his speech on the same day in Parliament towards the end stated. [Extract provided]
37. That it is submitted that the spirit and internment of the first amendment of the constitution and subsequently enacting the International Crimes (Tribunal) Act, 1973 was brought in, to bring those 195 to justice and a list of 200 is provided below and among them 195 will be tried. [List provide]
38. That it is stated that on April 9, 1974 a Tripartite Agreement between India, Bangladesh and Pakistan for normalization of relations in the Bun-continent, 1974 was signed in New Delhi by Dr. kamal Hossain Mr. Sarder Swaran Singh of India and Mr. Aziz ahmed of Pakistan.

39. That it is stated that after the independence of Bangladesh those Pakistani army particularly 195 personnel were also allowed to go home under New Delhi Agreement without any case being filed against them for war crimes or crimes against humanity which they committed during the war in 1971.

40. That it is stated that the same tripartite agreement approved and endorsed the release of 195 prisoners of war, identified as war criminals and offenders of crimes against humanity from the custody of India to Pakistan.

41. That in total disregard in violation of an act of parliament i,e the International Crimes (Tribunal) Act, 1973 Dr Kamal Hossen, ex-Foreign Minister of Bangladesh signed a Tripatra Agreement on 9th April 1974 to release 195 Pakistan POW’s who were identified and were accused of committing crimes against humanity.

42. That on December 16 of 1974 Bangabandu Shiekh Mujibur Rahman in his address to the nation stated; [extract provided]
43. That the 1st amendment of the constitution under Article 47(3) only four categories of people were aimed at to bring to justice;
a. Any member of arms
b. Defence
c. Auxiliary Force
d. Any member of prisoners of war
and International Crime (Tribunal) Act, 1973 included only 3 category of people and they are member Armed defense or auxiliary force and the present petitioner does not fall into any of those categories.

29. That scheme of the International Crimes (Tribunal) Act, 1973 was thus a military court to try the Military Officers (Commanders of Pakistan defense forces) and section 6(2) of the 1973 Act was designed for that purpose.

30. That under the IC(T) Act 1973 section 4 & 5 clearly gives indication that the law was designed for commander or superior officers but their official position will not force an accused from responsibilities.

31. That on July 8, 2009 amendment was brought to the ICT Act, 1973 which included any individuals and in violation of Article 47(3) and disregarding the intention of the father of the Nation.

32. That our Appellate Division delivered judgment on 1st February’ 2010 in the case of Khandokar Delowar Hossain, secretary of Bangladesh National Party (BNP) and another V-s. Bangladesh Itation Marble Works Ltd, Dhaka and others in C.P. No. 1045 of 2009 reported in 2010 BLD (SPI) 2, wherefore Appellate Division affirmed the judgment of the High Court Division in Writ Petition no. 601 of 2000 with some modifications and leave petition were dismissed by that judgment the constitution fifth amendment Act, 1979 was declared illegal and void abiniteo subject to condo nation of provisions of action there on as mentioned in the Judgment.

33. That since Act 1 of 1979 was declared illegal and the Bangladesh collaborators (Special Tribunals (Repeal) Ordinance 1975 was not condoned by the Appellate Division and for that reason by the 15th Amendment of the constitution of the Bangladesh collaborators (Special Tribunals) order 1972 has been brought in the 1st schedule of the constitution as per Article 147(2) and that the collaborators order 1972 is enforce and operational.

34. That from 1972 to date no allegation against the petitioner could be substantiated by documents even the gonoadalat secretariat where Mr. Justice Nizamul Hoq, Barrister Shafique Ahmed, present Attorney General Mr. Mahbube Alam, Ziad Al Malum, Learned persecutor could not find and substantiate any allegations, but suddenly the news papers and electronic media stated reporting against the petitioner and perhaps there are malafide reason behind their publications and reporting.

35. That Saitta Ranjon Sing the sons of late Nature Chandra Singes appointed as a member District Ministry Board, Chittagong in place of Mrs. Nelli Sen Justice on 15th June 1971 which suggests that Naton Chandra Sing family was rather close to the then rulers.

36. That it is stated that any disassociation from the sprit of first Amendment will amount to prosecution an odd 70 million people who were neither combatants to the war nor refugees who fled to other country. So in fact 70 million people of Bangladesh will be vulnerable to politically motivated and subjected persecution by any political government.

37. That Dr. M.A. Hasan wrote a book which was published in 2007 where genocide, ethnic cleansing, rape, arsons and looting were alleged against the Pak Army occupation and the writer has made General Tikka Khan, Lt. General Niazi, Brigadier Beg, Brigadier Ansary, Colonel Janjua, Colonel Vadi, Major Bukhary, Major Z Khan, Major Aslam, Major Hadi and Major Zaman accused of committing crimes against humanity and for committing war crime.

38. That the entire fiction of allegation in the formal charge in the based on the logical fallacy of “Post hoc ergo proctor hoc’’ Mr. Fazlul Quader Chowdhury was president of Pakistan convention Muslim League. Mr. Fazlul Quader Chowdhury supported the concept of the federation of Pakistan and opposed secession of Bangladesh. Therefore Mr. Fazlul Quader Chowdhury was a war criminal. Mr. Salauddin Quader Chowdhury is Mr. Fazlul Quader Chowdhury’s son hence Mr. Salauddin Quader Chowdhury is a war criminal.

39. That the Gazette Notification of Yahya Khan froze the Bank account of the Pakistan Muslim League ( Convention) which was led by Mr. Fazlul Quader Chowdhury.

40. Mr. Fazlul Quader Chowdhury was not released from jail on a mercy of pardon (amnesty) as a collaborate and certainly Mr. Fazlul Quader Chowdhury was not convicted for collaboration.

41. That Mr. Salauddin Quader Chowdhury was never a member of any political party and even student organization there is absolutely no record of any political affiliation till end at 1978.

42. That the alleged insinuations by the prosecutors are solely based on the petitioners biological genealogy being Mr.Fazlul Quader Chowdhury’s son.

43. That as there is no evidence to suggest that Mr. fazlul Quader Chowdhury was a war criminal the fictional insinuations against the petitioner are now totally and transparently exposed as blatant political persecution of opponent’s of the current regime extorting the petitioner into submission by intimidation of prosecution as a war criminal or perpetrator of crimes against humanity.

44. That the allegation invoked against the petitioner in the formal charge is vague imaginary, unspecified and fictitious as the petitioner was made to be present at the place of occurrence.

45. That in paragraph 9 of the discharge application filed by the state defense of behalf of the petitioner explains the issue of double Jeopardy as well as the legal points mention by the defense council in paragraph 16.

46. That the allegations bought against the petitioner in the formal charge suggest that the petitioner did not commit any offence himself, hence the petitioner may kindly be discharge.

47. That the miss petition No. 4 of 2010 which was filed by the prosecutor on the basis of a report dated 12.12.2010 where in the cause title the petitioner was addressed as (Superior High command) but now the prosecution by shifting the goal post has been attempting to depict the petitioner as a bystander hence there is no substantive allegation against the petitioner as such the petitioner may kindly be discharge.

48. That it is further submitted that Act 55 of 2009 is a substantive penal law with new insertion of words “any individual or group of individuals” hence any retrospective application of substantive penal law will be in direct conflict with the constitution and the opinion passed on 03.09.2009 by the Appellate division in Special Reference No.1 of 2009 of Peelkhana carnage as Act 55 of 2009 came into effect on 14th July 2009 hence the petitioner may kindly be discharge.

49. That the power to amend must not be confounded with the power to create. The difference between creating and amending a record is analogous to that between the construction and repair of a piece of personal property" Justice B.H.Chowdhury in para 192 in the judgement of declaring 8th Amendment illegal has said : "The term amendment implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was forme”

50. That the Bill introduced in Parliament for the 1st Amendment to the Constitution in 1973,included "any person" in addition to the "members of defence, paramilitary forces, auxillary forces and prisoners of war" in Article 47.

However, during the debate on an amendment moved by Asaduzzaman MP supported by Sh.Mujibur Rahman - the Leader of the House - the term "any person" was deleted and the 1st Amendment was passed with only the four categories mentioned above.

Consequently, it appears evident that the sponsors & legislators of both the 1st Amendment and the ICT Act of 1973 were very clear as to the target and intention of both Article 47 and the provisions of the ICT Act of 1973.

51. That the Amendment of ICT Act of 1973 in 2009 , 36 years later including "any individuals, group of individuals or organisations" is not an amendment but the the creation of a new law with totally new objectives.

Also, the subsequent amendment of Article 47 by the 15th Amendment - one full year later to make the Constitution consistent with the amended ICT Act of 1973 - creating a new Part III of the Constitution that enumerates conditional fundamental rights, which are subject to the caprice of the amended ICT Act of 1973.

Wherefore, it is humbly prayed that the Hon’ble Tribunal would be pleased to discharge the petitioner from the alleged allegations and pass such other or further order(s) as may deem fit and proper.
And in addition, a further application
1. That in the order dated 13.03.2012 the Hon,ble Chairman held “ only we want to say here that mere doubt will not do. They are to come with specific case of bias”.

2. That the Hon’ble chairman made so many remarks in his order about which the prosecution did not even utter a word on it and there are conflicting remarks made by the Hon’ble Chairman of the Tribunal and there are also remarks for which the order appears to be inconclusive and pending.

3. That the prejudice which the Hon’ble Chairman i.e. the tribunal started when the tribunal amended the rule 9(4) in violation of sec 11(5) of the ICT Act 1973.

4. That the prejudice has been caused on two specific occasions, one being framing Rules of Procedures in particular Rule 9(4) under the authority of sec 22 of the ICT Act. Sec 22 of the ICT Act provides “ Rules of Procedure: subject to the provisions of the Act a tribunal may regulate its own procedure” but in the instant case the tribunal stepped outside the ambit of the Act itself and formulated rules in clear violation and conflict of other provisions of the Act.

5. That the petitioner has been illegally detained since 19.12.2010 under rule 9(4) of the rules of procedures in violation of sec 11(5) of the ICT Act hence rule 9(4) can not be said to have been formulated in good faith.

6. That in another order the Hon’ble Chairman held that there was no suggestion that in preparation of the report of the People’s Inquiry Commission he played any role so assumption of bias was infact imaginary but the People’s Inquiry Report of the People’s Inquiry Commission at page 10 reads “ the commission analyzed all the information gathered by the members of the secretariats” hence it can be definitively be said that since Hon’ble Chairman as one of the members of the secretariats hence he actively participated in investigating the facts and compiling data and as such this is a specific case of bias.

7. That the following incidences will also certainly give events of prejudice upon the petitioner:-

a) That for the petitioner sec11(5) has been flagrantly violated by passing an order of illegal detention for 15 months.

b) That the jurisdiction of this tribunal in sec 3(1) is being unabashedly violated by prosecuting the petitioner.

c) That under sec 10(4) of the ICT Act for public trial is being bluntly violated by the restricting entry in to the tribunal court room.

d) That the petitioner has been denied consultation with counsel for the last five months.

e) That the petitioner has been denied family visit for the last three months.

f) That the petitioner has been denied medical treatment.

g) That the petitioner was imposed upon by appointment of the state defence counsel.

h) That the petitioner was denied the right to present himself as per sec 17(2) of the ICT Act.

i) that the cognizance was taken in the absence of the petitioner.

j) That orders including order on discharge petition were pronounced in the absence of the petitioner and for which Mr A.K.M Zahir Ahmed was pleased to pass an order disagreeing with the Hon’ble Chairman of the Tribunal on 13.03.2012.

k) That the petitioner was physically coerced to cancel vokalatnama.

l) That the petitioner was manhandled in the court room when he was less perambulatory.

m) That a constitutional opinion of the Appellate Division is referred to as only an opinion rejected to an opinion in a letter to the editor column or a Tele show opinion on the BDR Carnage.

n) That a judicial opinion of a full bench of the Appellate Division enunciating judicial principle is flouted with utmost disrespect.

o) That claiming the tribunal as a domestic tribunal denying international covenants to which Bangladesh is a signatory of International War Crimes Tribunal at the caprice of this tribunal.

p) That a novel doctrine of “no bar” is applied prejudicially against the petitioner.

q) That sec 26 of the General Clauses Act on double jeopardy is flouted.

r) That the fundamental rights against discrimination are merely ignored.

s) That the tribunal is acting as prosecution’s guide and philosopher.

t) That the tribunal is unabashedly promoting the prosecution’s case, by suggesting in public new arguments to the prosecution.

u) That the tribunal even responds to inputs from the prosecution.

v) That the tribunal seeks prosecutions opinion on its own power.

8. That the order rejecting the discharge petition is quiet explicit in amplifying that it does not agree with the judicial principle applied by the Appellate Division in its Article 106 opinion on BDR Carnage as the Tribunal has rejected the same principle argued by the defence.

9. That the tribunal has failed to justify “arbitrary detention” as it is in violation of sec 11(5) of the ICT Act.

10. That the tribunal has introduced another novel doctrine of omission conveniently ignoring the primary perpetrator of the omission to safeguard the lives of 3 million killed and hundreds of thousands of women whose modesty was violated.

11. That the tribunal has promoted a novel concept of crimes against humanity to incorporate petty theft, extortion and larceny and all other crimes under the penal code.

12. That the tribunal’s judicial wisdom has so far been subjective in it’s application and petitions for universal application for both defense and prosecution have been consistently been denied.

13. That the tribunal vows to abide by the provisions of the ICT Act under which it was been appointed but it’s consistent violation of explicit mandatory provisions of the ICT Act i.e. sec 3(1), sec 11(50, sec 17(2), sec 22 are a challenge to “the good faith” stipulated in sec 25 proving indemnity.

14. That the tribunal asserts ICT Act is a constitutional act but refuse to acknowledge the constitutional provisions as the supreme on the lame plea that it cannot invoke the constitution as it is not a “constitutional court”. A plea that is not even offered by a magistrate’s court of the lower judiciary.

WHEREFORE, it is humbly prayed that your Lordships would graciously be pleased to take judicial notice of the grounds mentioned in this petition and pass an order discharging the petitioner from alledged offences or pass such order or further orders as your Lordships may deem fit and proper.
Fakhrul Islam also raised some other issues

The 15th amendment Act came into effect from 3rd July, 2011. Referring to the new 7A and 7B of the constitution, he specifically mentioned Article 7A t- which he said brought into effect before 3rd July, 2011. If anything is happened after this then it could be brought into justice after 3rd July, 2011. Section-5 of the General Clauses Act talks about provisions coming into operation after the date of enactments. 15th amendment is an enactment so it was published on 3rd July, 2011 and come into effect on the same date. Under Article-80 of the Constitution- the Act of Parliament comes into law.

The Collaborators Order-1972 [P.O.-8 of 1972] was exclusively intended for the collaborators and abettors.

Justice Nizamul Haq: As you are saying that it says only the abettors will be tried but not the main offenders; show this to us? Please concentrate on the review matter of the discharge petition which was being rejected by the tribunal.

Fakhrul Islam [Defence Counsel]: The original ICT Act of 1973 says that- 3 categories of people- armed, defence and auxiliary forces will fall under the purview of this Act. At first the provision of the individual person was not included. And here the matters of Bangladeshi citizens have been omitted. The matter here is that the accused is a political person, so he would not fall under this act.

Justice Anwarul Haq: So, you say the retrospective won’t be given. What do you want to say about- ICT Act-1973 or the amendment of the Act at 2009?

Fakhrul Islam: I would argue that this applies to both the Acts.

Justice Anwarul Haq: You have stated about the applicability of the General Clauses Act. But you know, Mr. Islam- it is not a Constitutional Court. And the Act of 1973 has retrospective effect itself. It was intended for the occurrences happened before 1973. If the 1973 has retrospective effect then why not it would be applicable for the amendment of 2009?

Fakhrul Islam: If it was holding retrospective effect thenArticle-44 would not be applicable. Article-44 of the Constitution is not applicable for the accused people.

Justice Nizamul Haq: It has not been stated anywhere that no one could claim the fundamental right as stated in Article-44; other than the 3 groups- armed, defence and auxiliary forces.

Justice AKM Zaheer: Would you like to say ICT Act- 1973 was actually intended for the 3 groups of people who committed any of the following crimes, whether before or after the commencement of this Act? Now, your point is the  the amendment Act would come into effect immediately, as it has been mentioned in the Act; Unlike, the original Act, there is no mentioning that- the Act will be effective before or after the commencement of the Act.

Fakhrul Islam [Defence Counsel]: Yes My Lord, I would like to say it exactly.

Court was adjourned to the afternoon

No comments:

Post a Comment