28 Feb 2012: Chowdhury charge framing, bail

Justice Fazle Kabir was absent. Chowdhury's lawyer, Advocate Fakhrul Islam came to the dais and told the court that they were not getting any cooperation from the Jail Authority to collect papers from the Jail. 'We’re not getting the authorized papers,' he said.

Justice Nizamul Huq: This is not under the jurisdiction of the tribunal. And the Tribunal can do nothing outside the ambit of the jurisdiction.

S.Q. Chowdhury shouted that this is the matter for the D.C. [Deputy Commissioner]

Justice Nizamul Huq: Yes, it is nothing to be dealt under the jurisdiction of this Tribunal.

Advocate Zaed Al Malum continued with the prosecution response to the bail/disposal application - a continuation of the previous days hearing.

After the atrocities of the war of 1971, while Bangladesh was a newborn State, where the atrocities of the war were evident everywhere, the then Government formed some tribunals under the Collaborators Order-1972 for the trial and prosecution of those perpetrators. It was felt that- there must be a particular law to try those particular perpetrators. After that- following the Universal Declaration of Human Rights- 1948, Genocide Convention, Geneva Convention, Nuremburg Principles, other International Laws, the Constitution of Bangladesh, the International Crimes Tribunal Act-1973 was passed by parliament. As a citizen of Bangladesh I am proud to say that- these were really a great initiative towards the progress of the trial.

He then referred to Article 47(3) of the constitution – introduced by the 1st Amendment of the Constitution: “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 defence or auxiliary forces [ or any individual, group of individuals or organisation] 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 such law is inconsistent with, or repugnant to, any of the provisions of this Constitution.”

And the Article- 47A (1) says as follows: The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.

And Article 47A (2) says: Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.

Justice Nizamul Huq: Could you please submit a Constitution to the Court that you are citing.

Advocate Zaed Al Malum: My Lord please let me send someone to come with the Constitution from the downstairs.

S.Q. Chowdhury: You could take my copy.

Justice Nizamul Huq: We’re not taking your copy; it is the duty of the prosecution, not yours.

[Then Advocate Zaed Al Malum submitted the Constitution before the Court.]

Advocate Zaed Al Malum:

My Lord, Article-47(3) of the Constitution refers to the sanction, extent, and jurisdiction. Now, it is my humble submission that- the ICT Act has been passed after the first amendment of Constitution. Section- 3 of the Act determines the jurisdiction of the tribunal. Section-3(2) of the Act mentioned the crimes which are under the jurisdiction of the tribunal. Namely- Crimes against Humanity; Crimes against Peace; Genocide; War Crimes; violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949; any other crimes under international law; attempt, abetment or conspiracy to commit any such crimes and complicity in or failure to prevent commission of any such crimes.

The Defence Counsel has challenged the ambit and scopes of the tribunal; even they have contended that it is improper to proceed further with any other matters until there is the trial of 195 people.

Tribunal is not here to deal the Constitutional matters. Till date almost 35 tribunals has been formed over the world for the trial of the perpetrators of various kinds of crimes committed in the period of War. I am proud to say that I was lucky enough to observe a few of the proceedings among those Hybrid Tribunals. The Judges are qualified enough to preside the tribunal. Following the tribunals, the International Crimes Tribunal of Bangladesh has also been formed by the qualified Judges. But the defence have raised questions several times about the qualifications.

I would like to read out the page- 60 and Page-63 of Annexure –E of the defence. Before reading that out before the Court- Lets see the section-26 of the ICT Act. This says as follows—

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Collaborators Ordinance has been revived by the 15th amendment of the constitution. But here, what has happened under the Collaborators Ordinance it has not been presented before the Court. They are just providing some captions in favor of them like --the Documents of Genocide, the demonstration of the rape victim, etc.

Justice Nizamul Huq: They are trying to show by these captions that those 6 cases do exist. Can you deny their contention?

Advocate Zaed Al Malum: No, I’m not denying. But the allegations under section-3 of the ICT Act are not same allegation which has been brought before under Collaborators Ordinance and they are not under the same law. Section- 5(1) of the ICT Act says as follows “The official position, at any time, of an accused shall not be considered freeing him from responsibility or mitigating punishment.”

Now hereby I would like to draw your kind attention on another matter- that is—there are several Medias who are using the term “Government Party” to denote us. We are again telling everyone that we are not the government Party; we’re the prosecution team, running in an independent manner. Chief Prosecutor does not represent the Government. So they must be careful about using the term Government party.

The citizens of this Country are looking for the trial of those perpetrators of 1971. Article- 7(1) of the Constitution says as follows: “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.”

By showing proper condolence and respect towards their comitment, the International Crimes Tribunal has been officially formed on 25 March, 2010. We’ve been appointed, and then the Investigation agency has been formed. It is totally running though the proposed way.

Now, coming to the point, Section-5 of the ICT Act is involved with the Collaborators Ordinance. Those are outside the ambit of the Jurisdiction of this Tribunal, so that the cases are that Ordinance should not get life under this Act. Section- 23 of the ICT Act also discusses about the scope of CRPC and Evidence Act under this tribunal. As, the Collaborators Ordinance has been revived; so the cases under that Ordinance should be done under the ambit of that particular Ordinance. The cases have not been transferred to this tribunal to be settled down. Under Section-6 of the ICT Act, the Government may form one or more tribunals for the trial of the matters. Now what would happen to those 36,000 people, it is not the headache of the tribunal.

Now, the defence have made an argument that the ICT Act amendments was made only to allow for his prosecution.

Justice Nizamul Huq: The contention of the defence is that at the time of creating the act the intention was to try the Army and the auxiliary forces. Whereas the Collaborators Ordinance is applicable to the civilians.

Advocate Zaed Al Malum: Some cases has been initiated under the Collaborators Ordinance. But here the matters under the ICT Act are totally different from the ordinance. It is not our duty to know the intention behind passing any law.

Justice Nizamul Huq: We might not know the intention behind a particular law.

Advocate Zaed Al Malum: It has been stated at the beginnin of the Act, for whom and for what reason this Act has been provided, this is as follows: ‘An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.’ And 47(3) of the Constitution says about…[ Justice Nizamul Huq interrupted. ]

Justice Nizamul Huq: Article- 47A and 47(3) of the constitution are the safeguards of the ICT Act. The opposition has articulated that- the Act was not intended for the civilians, after the amendment of 2011, the word “individual person” has been inserted. Now the Question is whether the Court can see the malafide matter, and the second question is- whether the amendment may extend to the matter of 1973.

Advocate Zaed Al Malum: If their submission is to argue that the amendment was illegal, then we must ask, whether there is scope under the tribunal to deal with this question.

Justice Nizamul Huq: It is the argument of the defence that the amendment was made only to harass some particular people, the word “individual person” has been inserted here.

Advocate Zaed Al Malum: 

They are contending on 2 points. First one is whether the amendment was against the spirit of the Constitution and was brought to harass their client. And another one is whether the matter of amendment would be settled down under the jurisdiction of this tribunal.

Till date, the amendment of the ICT Act is prevailing and it has not been annulled by any Court of Bangladesh. As the amendment was done by following proper manner, so that will be effective. So, there was not any amendment or act to harass anyone. This Act has been promulgated to redress thousands of victims of 1971. And the word “individual” has not been used to humiliate anyone. So there is no legal standing and footing on the favor of their claim about harassing any particular someone.

Now, I’m going to discuss about another important point- that is the principle of Double Jeopardy. At first, let me discuss about the principle. Article- 35(2) of the Constitution says as follows—“No person shall be prosecuted and punished for the same offence more than once.”

Now the matter is about the term “Prosecuted and Punished”

Their contention is that there are 6 cases prevailing under the Collaborators Ordinance and the Penal Code. Their contention does not involve the matter whether he has been acquitted or punished. It is apparent that the cases have been filed in Chittagong at 1972. Now we’ve to concentrate on the applicability of the principle of Double Jeopardy on those cases.

My Lord, please look at Page-211, Para- 2.140 of 2nd edition of the book- Constitutional Law of Bangladesh written by Mahmudul Islam. It says about the principle of double jeopardy- It says as follows- “To determine the application of art.35(2) three things are to be considered- (i) whether the accused was prosecuted and punished in a prior proceeding, (ii) whether the subsequent proceeding is a fresh proceeding or a continuation of a prior proceeding and (iii) whether the previous charge was substantially the same as the present one.”

Justice Nizamul Huq: According to the defence, a charge sheet means the initiations of the prosecution.

Advocate Zaed Al Malum: Here the term Prosecuted and Punished denotes one individual expression. Whether the accused was prosecuted and punished it is the question. So it has been elaborated in Page-211 of the book- Constitutional Law of Bangladesh written by Mahmudul Islam- whether the subsequent proceeding is a fresh or prior proceeding. There is no way to try anyone before 20 July, 1973 under the ICT Act. As the previous cases has been filed before the following date, so the present one is a fresh proceeding.

Whether the proceeding is a fresh one or whether the charge was the substantial matter before it; these are the cardinal matters of Double Jeopardy. The same principle has been uttered by H.M. Sirvai on his book of Constitutional law of India. The same principle has been dealt under the Article-20 of the Indian Constitution.

We are not doing a second proceeding on the same matter. The ICT Act-1973 has got its life on 20th July, 1973. So, before that till 19th July, 1973, there was no scope for filing a petition under section-3(2) of the ICT Act-1973.

Justice AKM Zaheer: So you are trying to specially mention the case of Notun Chandra Singh. That killing happened on 1971 His son filed a case on 1972. So it is not a fresh case. So far my memory says, the case has been withdrawn. We’ve to know, whether the case is pending before the High Court Division.

Advocate Zaed Al Malum: No My Lord. The prosecution has brought a fresh case.

Justice Nizamul Huq: In that case it was a murder and now under the ICT Act, it is to be settled whether it is a crime against humanity.

Advocate Zaed Al Malum: Now I would like to say the atrocities which has been occurred on that area and on Notun Chandra Singh was to destroy a religious minority.

Justice AKM Zaheer: So, now, I would like to ask why didn’t you frame those jointly rather than individually.

Advocate Zaed Al Malum: My Lord, may I say, whether it is under the ambit of the principle of double jeopardy.

Justice AKM Zaheer: Before the promulgation of the ICT Act-1973, it has already been confirmed in the constitution of 1972 that the same person should not be prosecuted and punished for the same offence. So, it is apparent that already the son of Notunchandra has filed a murder case. You’ve not made the matters clear on the formal charge. Framing the charge is dependent upon you providing materials. If you had not mentioned anything about the case of Notunchandra, or the writ before the High Court Division, we would not think about the matter. But under being a prima facie case under Section 3(2) (a) we’ve took the cognizance.

Advocate Zaed Al Malum: Please look through the Rule-38 of ICT Rules of Procedure, which says as follows— “If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.”

Justice AKM Zaheer: No. I’ve not seen anything contained in the FIR or Charge sheet. I am just saying you have not provided information about what is the actual status/ result of the writ before the High Court Division [against the earlier prosecution]. All the matters has to be fixed before charge hearing.

Advocate Zaed Al Malum: I would like to say, S.Q. Chowdhury has not been acquitted or punished for the cases which are pending against him.

Justice AKM Zaheer: Murder under the Penal Code and the ICT Act are not the same thing.

Advocate Zaed Al Malum: Yes ny Lord. The police cases against S.Q. Chowdhury and the case of ICT- BD 02 of 2011 are not the same case. So, the question of double jeopardy does not arise at all.

Now, come to another point, they are contending that before the trial and punishment of those 195 people, the tribunal is dealing with cases of the following accused to politically harass them.

Adjourned for lunch

Prosecution Zead-al-malum continued to submit his arguments against discharge petition as well as bail petition.

I want to submit the writ petition (M Hamidullah Khan vs. Bangladesh 63 DLR(2011) which the defence said supported their submission that their client will not be prosecuted unless the 195 prisoners should be brought first for trial and punishment.

One wing commander M Hamidullah khan, Bir Protic, has filed an application under Article 102 of the constitution of the people’s republic of Bangladesh with a prayer to issue Rule Nisi calling upon the respondents, Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs and Government of People’s Republic of Bangladehs, Ministry of law, Justice and Parliamentary Affairs to show cause as to why the New Delhi Tripartite Agreement signed by the then Foreign Minister, Dr. Kamal Hossain. Respondent No. 4 on 9th April, 1974 releasing 195 Prisoners of War, identified as crimes against Humanity, shall not be declared to have been made without unlawful authority and as of no legal effect and also with a further prayers as to why the respondents shall not be directed to produce a list of three millions martyrs who sacrificed their lives in the war of 1971 and also shall not be directed to produce the list of the auxiliary forces of Pakistan who worked under the then Pakistan.

Mr. AKM Fakhrul Islam appearing on behalf of the petitioner submits that the very release of 195 prisoners of war under “Tripartite agreement” signed on 9th April 1974, popularly known as the Delhi Agreement on the plea of clemency is absolutely illegal and stands against the provision laid down in Article 47(3) of the constitution read with the provision laid down in International Crimes (Tribunal) Act 1973 since the first amendment of our Constitution on 15th July 1973 provides for trial of prisoners of War who committed crimes against humanity. Mr. Islam further submits that the terms of the agreement to release the 195 War Prisoners in the name of clemency is also without jurisdiction because Article 49 of the Constitution does not allow to release any one without their trail by competent Courts/ Tribunal.

On perusal of the recital of the application it is clear that 195 prisoners of war, the alleged perpetrators of the crime against humanity were not under the custody of Bangladesh at the time of agreement, rather they were under the custody of India and they were handed over to Pakistan to protect the better interest of the country under a peace agreement and after lapse of 36 years that cannot be declared illegal by invoking writ jurisdiction, which is unrealistic and absurd, rather it is clearly a product of ulterior motive.

Justice Imman Ali rejected instant writ petition summarily, the instant petition is frivolous and vexatious and learned Advocate for the petitioner must take care that this type of conduct should never recur in future.

Therefore they cannot refer this case as the case was summarily rejected.

Justice Zaheer: Is this the case they referred? Whether the name of the writ petition was mentioned in their discharge petition?

Ziad-al-malum: No, they did not refer to the writ petition but ground of the writ petition was mentioned in discharge petition. So my lord they cannot say that petitioner cannot be prosecuted without bringing 195 offenders to this country.

Justice Zaheer: Did the (defence) say this? So I far as I understand they said how can an abettor be prosecuted where principle offender is absent.

Ziad-al-malum: My lord, rule 37 of International Crimes (Tribunal) Rules of Procedure, will not be applied for discharge petition. And there is provision of abetment in many national and international law. In a nut shell, bringing of 195 offenders is not related to Sallahuddin Qader choudhury’s matter as well as rule 37 is not a ground for his discharge. He should be punished as abettor as we know section 3(2) (g) of International Crimes Tribunal Act-1973 deals with abetment.

Justice Nizamul Huq: Learned prosecution you cannot say he is charged with only abatement.

Ziad-al-malum: Defence counsel said formal charge is not proper and complete. But we have followed all the rules and section as so required. According to rule 38 of the of International Crimes (Tribunal) rules of procedure, 2010. “If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.”

And according to sec 16(1) of ICT Act 1973, we have maintained all those things which should be included to the formal charge. Every charge against an accused person shall state:
(1) The name and particulars of accused person.
(2) The crime of which the accused person is charged.
(3) Such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged.

Zead-al-malum: My lord, defence raised a question, why the case had not been filed earlier? In response to their question I just want to say that there is no time limitation in case of criminal matter.

My lord, If I stay anywhere temporarily or permanently where the crime has been committed then it will be presumed I am involved in this offence also.

Justice Zaheer: Do you want to say, mere presence constitutes an offence? In Sec 3(2) of ICT 1973, it is clearly specified “committed” that means you should have ‘committed’ the offence not only ‘presence’.

In another charge also, the petitioner was charged for abduction. He directed musa and others for abduction. In that point defence also raised question why musa and others were not included in the charge? If crime was committed by all of them then why only one is prosecuted? For that reason Mr. Hena said, why pick and choose process is applied here? Why Mr. Sallahuddin Qader Choudhury is only liable?

Justice Zaheer said to the Prosecution, learned prosecutor do not take it otherwise, these all are my queries only. I am not here on behalf of you or the defence, I am fully a neutral body to hear from and ask question both of you.

Ziad-al-malum: If 10 persons commit crime then each and every person will be liable individually. A person is also liable if he is not trying to prevent crime which is occurred before him. Accused is liable under section 3(2)(a),(g),(f),(h).

And according to section 51 of International Crimes (Tribunal) rules of procedure, the onus of proof as to the plea of ‘alibi’ or to any particular fact or information which is in the possession or knowledge of the defence shall be upon the defence.