After the Sayedee hearing was completed, one of the defence counsel for Salauddin Quader Chowdhury, Mr Fakhrul Islam came to the dais and argued a bail petition of the Sallah Uddin Quder Chowdhury.
Fakhrul Islam: My lord, Presidential summons has been served upon the accused for attending the session of Parliament. My lord, since parliament is the centre of sovereignty in the country and 300 hundred people representing the whole nation. Therefore who is the Member of Parliament is also a little part of the sovereignty. My lord, 5 BNP leaders have been enlarged on bail from the High court Division for attending the session of Parliament. We are subservient to the law and law is made by the parliament. This Act is also the creation of the Parliament. Therefore my humble submission is that Tribunal must obey the order of the president since it is the presidential summon to attend the parliamentarian session.
The written application stated:
Zead-al-malum: There is no rules that an under trial prisoners for the War Crime Tribunal can be enlarged on bail. It is true that five BNP leaders have been enlarged on bail but that they were enlarged on bail for attending Parliamentarian Session and is not mentioned in the order sheet. Whether he is M.P or president it does not matter if he is accused of War Crime Tribunal. General Ershad was not the accused of War Crime Tribunal, so his matter is totally different.
And without enlarging him on bail, to provide special arrangement is totally absent in our Act and Rules. My lord, most importantly Bangladesh National Party is not attending Parliamentarian session. So it is very unclear that he will attend the session. Therefore enlarging him on bail is nothing but killing time. Bail is a right. It is discretion of the court but if he enlarged on bail trial proceedings will be hampered as cross examination of prosecution witness is ongoing.
Ahsanul-Haq-Hena came to the dais and gave his reply: My lord, I assured that he will attend the session. And though it is not mentioned in the bail Order sheet of the 5 BNP leaders that for attending parliamentarian session they were enlarged on bail but it is clear because these 5 persons are members of Parliament. Therefore, my lord we seek judicial discretion of the Tribunal. So, considering all aspects, my humble submission is, he could be allowed to go to the Parliament.
Then the court is adjourned.
Fakhrul Islam: My lord, Presidential summons has been served upon the accused for attending the session of Parliament. My lord, since parliament is the centre of sovereignty in the country and 300 hundred people representing the whole nation. Therefore who is the Member of Parliament is also a little part of the sovereignty. My lord, 5 BNP leaders have been enlarged on bail from the High court Division for attending the session of Parliament. We are subservient to the law and law is made by the parliament. This Act is also the creation of the Parliament. Therefore my humble submission is that Tribunal must obey the order of the president since it is the presidential summon to attend the parliamentarian session.
The written application stated:
That the petitioner has been served at 6 PM. on 25th, May, 2012 by Jailer of Gazipur Jail with a summons from the the Hon’ble President of Bangladesh as per Article 72(1) of the Constitution to attend the Session of Parliament beginning at 5.30 PM today on the 27th, May, 2012.
That the petitioner is currently being detained on the authority of International Crimes Tribunal’s in the custody of Gazipur Jail.
That the petitioner is placing on record that the petitioner wishes to respond to the presidential summons and attend the Session of Parliament starting 5.30 PM today.
That the petitioner does not seek any adjournment of the on going trial of the petitioner in International Crimes Tribunal.
That it is up to the Judicial wisdom of the International Crimes Tribunal to determine:
(a) Whether it will restrain the petitioner from responding to a summons issued by the Hon’ble President of the Republic.
(b) Whether it will restrain the petitioner from discharging his duties and obligation as a member of Parliament.
(c) Whether it will penalize the electorate of parliamentary constituency number 279 Chittagong-2 from being represented in Parliament.
(d) Whether it will penalize the petitioner from being convicted on any allegations by restraining him from representing his electorate in parliament.
(e) Whether it will “preserve protect and defend the constitution”.
(f) Whether it will honour due process of law where the constitution is the supreme law.
That as the petitioner is being detained by this Tribunal, it is the singular responsibility of the Tribunal to either respect the Presidential summon or to abide by it.
That the petitioner seeks an order from this tribunal to respond to the summons of the Hon’ble President of Bangladesh.The corresponding Bail application stated:
That the Petitioner is a peace loving and law abiding citizen of this country. The Petitioner hails from a respectable Muslim family of Bangladesh. His father was a great political leader of this country. The Petitioner is a well known parliamentarian and at present a member of the Standing Committee of the Bangladesh Nationalist Party (B.N.P). He was elected as Member of Parliament in the last six consecutive parliamentary election of Bangladesh. He was Minister for several portfolios over the years and lastly he was the Advisor for Parliamentary Affairs of the former Prime Minister Begum Khaleda Zia. He is at present a Member of Parliament being elected from the Constituency No 279, Chittagong-2.Ahsanul-Haq-Hena: My lord, this is very simple matter, enlarging him on bail will not hamper the regular proceedings of the Tribunal. We will not misuse any privileges.
That the Petitioner was not arrested by any order of this Tribunal.
That the Petitioner was detained on 19.12.2010 by an order of detention which was issue ostensibly under Rule 9(4) of the International Crimes Tribunals Rules of Procedures.
That the Petitioner is in carceration on the authority of the International Crimes Tribunals in the custody of Gazipur Jail.
That the Petitioner is a Member of the current Parliament constituted under Article 65(1) and Article 65(3) of the Constitution of the People’s Republic of Bangladesh.
That the Petitioner’s Constituency No.279, Chittagong-2 which consists of over half a million people and about three hundred thousand eligible and registered voters.
That the Petitioner is a sitting member of the Parliament Standing Committee for the Ministry of Law, Justice and Parliamentary Affairs and the only member of the opposition-constituted as per Article 76(1)(c) of the Constitution of the People’s Republic of Bangladesh.
That the Petitioner is also a sitting member of the Public Accounts Committee of the Parliament constituted as per Article 76(1)(a) of the Constitution of the People’s Republic of Bangladesh.
That the Petitioner intends to oblige to the summons of the Hon’ble President and the Petitioner intends to participate in all parliamentary proceedings as a duty and obligation to the electorate that elected him to office subject to any other Constitutional deterrent.
That the Petitioner is entitled to all privileges as per Article 68 of the People’s Republic of Bangladesh and also the privileges as per East Pakistan(Now Bangladesh) Assembly Members’ Privileges Act 1965.
That section 7 of the East Pakistan(Now Bangladesh) Assembly Members’ Privileges Act 1965 reads as follows:-
- “No member shall be required to appear in person in any civil, criminal or revenue court or any election tribunal during a session and a period of seven days before and seven days after the session”
- “Notwithstanding anything to the contrary contained in any law for the time being in force, no civil ,criminal or revenue court and no election tribunal shall proceed during a sessions and for a period of seven days before and seven days after the session, with any matter before it in which a member is a contesting party or is charged, as the case may be, unless the privilege offered by sub-section (1) is waived by application made in writing to the court or tribunal, by the member concerned with the matter, and, where more members than one are so concerned, by all of them.”
- “The provisions of sub-section (2) shall apply to all matters pending immediately before the commencement of this Act in any civil, criminal or revenue court or before any election tribunal, in which a member is a party and no such court or tribunal shall proceed further with any matter unless the privilege referred to theirin is waived in accordance with the provisions thereof or the period specified therein has elapsed”.
That according to section 7 of the East Pakistan (Now Bangladesh) Assembly Members’ Privileges Act 1965 the petitioner may kindly be admitted to bail.
That there are precedents of members of the 7th Parliament, where conviction on appeal was permitted to attend the session of Parliament and specifically Mr.Hossain Md Ershad was given leave to take oath and to attend session of Parliament on 23 June 1996.
That the Petitioner humbly seeks an order from this Tribunal to respond and oblige to the summons of the Hon,ble President of Bangladesh through attending the session of parliament.
That the Petitioner may be permitted by this Tribunal in his constitutional position as a Member of Parliament to attend sittings of Parliament and two committees of which the Petitioner is a member, to sign documents and cheques related to his constituency.
That since sessions of Parliament was summoned by the Hon’ble President of Bangladesh for which five Members of Parliament who were sent to jail under non-bailable sections were granted bail by the Hon’ble High Court Division on 27.05.2012 facilitating them to honour and respond to the summons of the Hon’ble President so the Members of the Parliament are able to discharge their duties and obligations for which they were elected by their respective Constituencies hence the petitioner may kindly be enlarged on bail.
Zead-al-malum: There is no rules that an under trial prisoners for the War Crime Tribunal can be enlarged on bail. It is true that five BNP leaders have been enlarged on bail but that they were enlarged on bail for attending Parliamentarian Session and is not mentioned in the order sheet. Whether he is M.P or president it does not matter if he is accused of War Crime Tribunal. General Ershad was not the accused of War Crime Tribunal, so his matter is totally different.
And without enlarging him on bail, to provide special arrangement is totally absent in our Act and Rules. My lord, most importantly Bangladesh National Party is not attending Parliamentarian session. So it is very unclear that he will attend the session. Therefore enlarging him on bail is nothing but killing time. Bail is a right. It is discretion of the court but if he enlarged on bail trial proceedings will be hampered as cross examination of prosecution witness is ongoing.
Ahsanul-Haq-Hena came to the dais and gave his reply: My lord, I assured that he will attend the session. And though it is not mentioned in the bail Order sheet of the 5 BNP leaders that for attending parliamentarian session they were enlarged on bail but it is clear because these 5 persons are members of Parliament. Therefore, my lord we seek judicial discretion of the Tribunal. So, considering all aspects, my humble submission is, he could be allowed to go to the Parliament.
Then the court is adjourned.
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