After dealing with the Azam adjournment issue, the tribunal then moved on to continue to hear the arguments against charge framing put by Salauddin Quader Chowdhury - a continuation from the previous day
Advocate Ahsanul Haque, the accused’s lawyer got up to speak. He made the following arguments
- improvements necessary for the ICT Act have not been made;
- only trials of six or seven established leaders are likely to take place;
- although the BDR carnage was a crime against humanity, the prosecution is not taking place under the ICT act.
- there are 3 cases, which are pending under the Collaborators ordinance and there are 3 cases pending under penal law sections. What would happen to those cases? It has not been mentioned also in the ICT Act-1973. Article-35(2) of the constitution bar the prosecution of these 6 cases, as it says that no person shall be prosecuted and punished for the same offence more than once. As the Collaborators Order has now become effective (after recent constitutional cases) and the cases are running, so it is contradictory to prosecute these cases under a different law.
- In 1971 there were a lot of people who were involved directly with committing offences, so what will happen to those principal perpetrators.
Justice Nizamul Huq: So, what are you saying about double jeopardy? The provision here is that, no person should be tried for the same offence.
Advocate Ahsanul Haque: It is not the duty of this tribunal to interpret the Constitution, but as the Court has been formed by taking oath to protect the Constitution, so it is the mandatory duty of the Court to protect the provisions of the Constitution with utmost care when there is any contradictory provision in ICT Act-1973. I would like to refer Abu Taher Vs. State Case, where a person made a statement under section-164 of the CRPC, but the statement was made before the UNO of that area rather than in the presence of any 1st class magistrates. What is the difference between the statement made before the Upazilla Magistrate or the 1st Class magistrate it was made clear on that case. And on that case all the elements of the criminal cases were present.
He added:
- is there any relevancy between my client and the Video Documentaries which they have produced before the Court. Video Documents would be counted as strong evidence. But now a day it is a fashion of the media to use a caption as “Could not be verified independently.” So, it is easily assumable that. Video Clippings using this tag mark would not be counted as good evidence. Indeed, it was not produced fully before the Court rather just some pieces of the Video were shown. It has been settled in the Weigner’s Case that everything must be fully produced before the court.
- After he was arrested, S.Q. Chowdhury’s nails has been plucked. You’re trying matters of crimes against humanity But what isgoing on here? And S.Q. Choowdhury has been sent to the Kashimpur Prison-1. And Application has been made for the transfer of the Jail.
Tribunal was adjourned for lunch. The bail application made by chowdhury's lawyers in the afternoon, can be found on a separate page.
Advocate Ahsanul Haque, the accused’s lawyer got up to speak. He made the following arguments
- improvements necessary for the ICT Act have not been made;
- only trials of six or seven established leaders are likely to take place;
- although the BDR carnage was a crime against humanity, the prosecution is not taking place under the ICT act.
- there are 3 cases, which are pending under the Collaborators ordinance and there are 3 cases pending under penal law sections. What would happen to those cases? It has not been mentioned also in the ICT Act-1973. Article-35(2) of the constitution bar the prosecution of these 6 cases, as it says that no person shall be prosecuted and punished for the same offence more than once. As the Collaborators Order has now become effective (after recent constitutional cases) and the cases are running, so it is contradictory to prosecute these cases under a different law.
- In 1971 there were a lot of people who were involved directly with committing offences, so what will happen to those principal perpetrators.
Justice Nizamul Huq: So, what are you saying about double jeopardy? The provision here is that, no person should be tried for the same offence.
Advocate Ahsanul Haque: It is not the duty of this tribunal to interpret the Constitution, but as the Court has been formed by taking oath to protect the Constitution, so it is the mandatory duty of the Court to protect the provisions of the Constitution with utmost care when there is any contradictory provision in ICT Act-1973. I would like to refer Abu Taher Vs. State Case, where a person made a statement under section-164 of the CRPC, but the statement was made before the UNO of that area rather than in the presence of any 1st class magistrates. What is the difference between the statement made before the Upazilla Magistrate or the 1st Class magistrate it was made clear on that case. And on that case all the elements of the criminal cases were present.
He added:
- is there any relevancy between my client and the Video Documentaries which they have produced before the Court. Video Documents would be counted as strong evidence. But now a day it is a fashion of the media to use a caption as “Could not be verified independently.” So, it is easily assumable that. Video Clippings using this tag mark would not be counted as good evidence. Indeed, it was not produced fully before the Court rather just some pieces of the Video were shown. It has been settled in the Weigner’s Case that everything must be fully produced before the court.
- After he was arrested, S.Q. Chowdhury’s nails has been plucked. You’re trying matters of crimes against humanity But what isgoing on here? And S.Q. Choowdhury has been sent to the Kashimpur Prison-1. And Application has been made for the transfer of the Jail.
Tribunal was adjourned for lunch. The bail application made by chowdhury's lawyers in the afternoon, can be found on a separate page.
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