Sunday, July 1, 2012

27 Feb 2012: Chowdhury bail application

Following the end of the discharge application, Ahsanul Huq Hena then began to submit a bail application relating to Salauddin Quader Chowdhury before the Tribunal.

He said that that investigation report was not properly included to the formal charge; investigation officer did not investigate the charges properly as well. He did not ask the accused where he lived during 1971.

Justice Nizam said, which questions will be asked by the prosecution depend upon the prosecution.

Mr. Hena said my lord, I am talking about the investigation officer.

Justice Nizamul Huq: Investigation officer shall be considered as a body under the Prosecution team. According to sec 8(2) any person appointed as a prosecutor is competent to act as an investigation officer and the provisions relating to investigation shall apply to such prosecutor.

Ahsanul Huq Hena arguments are summarized below:
If there is prima facie case on the formal charge then it should be charged otherwise it will be discharged. This is the only case where he did not get bail [originally arrested in relation to other offenses]. If bail is enlarged on him then he will be released from custody. 
My lord, why I am prosecuted under this Act? I was not a pro-Indian, pro-Russian, and pro-American, I was not involved in Auxiliary force, and even I was not involved in any political party before 1979. 
By an amendment in 2009 the word “individual” is inserted. If this term is not inserted then Sallahuddin Qader Choudhudhury would not have been here. For an act of parliament, a person cannot be punished. Amendment is an act of parliament and it is absolutely done on political motive. 
My lord, it will be matter of joke if law of inheritance is applied here. Like property inheritance in Muslim Law accused inherited the criminal act of his father. He has another 3 brothers and 2 sisters then why they are not charged? 
My lord, petitioner did not need to go Rawjaan, Rangunia for persecution, there are lots of Hindu people in his own area where he lives. Then why he did not persecute them?

My lord, this Act was enacted in 1973 and this Government was in power before, then why they did not take action against him? Why there is undue delay? Why this case has not been filed yet? So it is clear enough that someone’s ill-intention is working behind this.

My lord, how can an abettor be punished where the principle offender is absent? My lord, another point is that none of the 195 offenders were stationed in Chittagong. Prosecution without prosecuting real perpetrators! How can it be possible? Abettor cannot be punished without principle offenders. It is also not mentioned who are victimized?

Justice Nizam: Is it necessary or possible to submit each and everyone’s death certificate.

Ahsanul Huq Hena: My lord, but who are these persons, where did they live, it should be ascertained. In case of conspiracy also, more than one person is needed, single man can not conspire. Then who are the other person?

My lord, accused petitioner is an active politician and Member of Parliament since 1979. There is no chance of absconding since the formal has been submitted.

My lord, 1 year and 4 months have been passed since the accused was in custody. It is long time. Therefore, in order to assist the advocate, to look after the case and to instruct the lawyers, he should be enlarged on bail.

All these are good grounds for enlarging him on bail.
Justice fazle Kabir: Learned defence I want to ask you a question. Art. 35(2) of our constitution the word is specifically mentioned that “prosecuted and punished” not “prosecuted or punished”. So did you place any document before the Tribunal to show that your case is prosecuted in another court?

Justice Nizamul: Learned defence these two words are conjunctive. So you have to fulfil both of the requirements. It should be prosecuted as well as punished otherwise there will be no violation Art.35 (2) of the constitution.

Ahsanul Huq Hena: My lord, it will be considered as prosecuted when police report has been filed under 173 of the code of criminal procedure, therefore all cases are prosecuted. In fact, my submission is that, my cases are pending under the collaborators Act and penal code. So my question is, in respect of pending cases whether the Tribunal has the authority to transfer the case?

Defence Counsel Mr Fakhrul Islam came to the dais and submitted some new substantive ground of the same petition. He referred to Art.14 (3) and 2(2) of International Covenant on civil and political rights,

Justice Nizamul Islam: Learned defence if these are points relating to same petition, then why you place these points separately? We can take these at the time of review petition.

Mr Fakhrul Islam: Okay, my lord.

Sallahuddin Quader Chowdhury then sought permission from the court to speak for 10 minutes before the Tribinal which was allowed.
My lord, my father wanted to make me lawyer. But now I am a law-maker not the lawyer. After the death of my father I was involved in politics. I am very much grateful to my appointed lawyers as well as to the Tribunal member also. Just I am here to certify some points:

What is the difference between ICT ACT 1973 and Collaborators Act 1972? ICT is specifically tailor-made for the combatants or for those who were the member of auxiliary force.

Collaborators Act was enacted before the ICT and for the people who were against the independence, who collaborated with Pakistan army. These Acts were not contradictory to each other, these are different Acts enacted in 1972 and 1973 for different purpose. In fact, the problem arose when by an amendment these two Acts were amalgamated for political motive.

My lord, I would like to say what is the meaning of amendment?

By an amendment you cannot create something new, you just empowered to amend or alter something. My lord, basic character of an Act can not be changed by an amendment. I am referring to the Moon Cinema case where declared 5th amendment was ultra-vires.
Justice Fazle Kabir: Learned defence, we are bound here by ICT Act but in moon cinema case Art. 102 (writ jurisdiction) was applied.

S.Q Choudhury: My lord. Charges which have been framed against me are totally unheard of. These are totally imaginary games against me. My lord, for your kind information I would like say, Dhaka branch manager of my own business is Ratan Kumar Roy. Chittagong Branch manager is Shopan Kumar Roy. Then how could I have been involved in persecution [of Hindus]?

Prosecutor, Zead Al Malum then came to the dais for placing their argument against the defense both in relation to the charge framing and in relation to bail.
My lord, there are 47 issues that have been raised by the defence counsels. We will respond to each and every point. 
International Crimes Tribunal Act-1973 has been enacted following the Genocide Convention-1949, Universal Declaration on Human Rights-1948 and Constitution of the People’s Republic of Bangladesh. 
Bangladesh is the first country after Nuremburg and Tokyo who established a domestic Tribunal for war crime. It was the Tribunal for punishing the individuals and group of individual who are committing crime against humanity, genocide, war crimes. ICT has been given a safeguard and made under the umbrella of the constitution.

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