Sunday, July 1, 2012

5 Mar 2012: Chowdhury frame charging

After dealing with an application for home made food from Golam Azam’s lawyers, the tribunal then continued with the charge-framing order relating to Salauddin Quader Chowdhury (the previous  hearing on this matter on 28 February can be read here)

Advocate Zaed Al Malum: I would like to submit the newspapers which published the reports on the matter of pardon approved by Bangabandhu Sheikh Mujibur Rahman. It has been provided there with the Prosecution’s documents. A press note has been released on 30th November, 1973 about the clemency matters. [Then he read out the Press Note (No: 409)] Now I would like to state that the Investigation agency has properly investigated Salahuddin Quader Chowdhury under section 8 of the ICT Act- 1973. There are lot of grounds to frame charge under section-16 of ICT Act-1973.

Justice Nizamul Haq: Mr. Fakhrul Islam [Defence Counsel]; you have provided a lot of papers here except the Clemency Order. You’re repeating the same issues which have already been disposed by us. Don’t do it again. It seems to us, it is nothing but wastage of time.

Fakhrul Islam: My Lord, every application is justified by the lawyer or the petitioner. The content of those applications have not been denied by anyone. The judgment of the 15th and 5th amendment of the Constitution is very much related to the revival of Collaborators Ordinance. And the Collaborators Order has been backed by the 15th amendment of the Constitution.

So, I’m very pleased to say that Mr. Zaed Al Malum has rather supported my argument. My humble submission is that the cognizance has been taken in absence of the Petitioner. And on the basis of investigation report, there were 32 grounds, but in the formal charge there were 25 grounds. And the petitioner does not come under these grounds. This petitioner may kindly be discharged.

And I would like to say that it’s not really clear to us why the ICT Act having been passed in the presence of Bangabandhu with a lot of great parliamentarians, then been amended in 2009 resulting in the aim of the act being frustrated by inserting the word individual.

Justice Nizamul Haq: I would like to ask is there any provision anywhere that if it was done in presence of Bangabandhu, it should not be amended anytime. And my second point is an Act is act as it stands now.

Barrister Fakhrul Islam: My Lord, the amendment of 2009 came into effect on 14th July, 2009. This is not a Constitutional Court to deal the Constitutional matters, but when situation arises, which may frustrate the aim and goal of the Constitution itself, in that case the honorable members of the tribunal could take cognizance.

As in the case of BDR carnage case, please look at section-5 of the Army Act-1952. It says- Section 5 of the Army Act, by a notification, could be extended to members of a disciplined force raised and maintained by the government. As the Army Act-1952 has no retrospective effect on the matter of BDR carnage, so it is not applicable there.

Like the BDR carnage, the petitioner’s case should not be invoked under ICT Act-1973. Until 1979, there was no record of S.Q. Chowdhury’s involvement in politics. My Lord, now, if I fail to convince you in this regard, then that is my bad luck.

Even in this case, the learned Prosecutor has not raised any point, whether the man comes under the purview of ICT Act-1973.

Justice Nizamul Haq: Are you trying to say it is malafide in nature?

Barrister Fakhrul Islam: No, My Lord. I’m trying to focus on actus rea, mens rea, elements, whether there is any case pending under High Court or Supreme Court Division.

My points are totally similar to the case of BDR carnage.

Justice AKM Zaheer: So you trying to say that the matters of S.Q. Chowdhury committed in 1971 cannot be dealt with by amending the Act in 2009. And you’re trying to say that substantive law cannot run retrospectively. Is it?

Barrister Fakhrul Islam: My Lord, We’re very pleased that you’re answering and responding to our issues.

Now I would like to read section 5(1) of the Army Act-1952.

“The Government may, by notification, apply all or any provisions of this Act to any force raised and maintained in Bangladesh under the authority of the Government.”

Here I would like to question is it justifiable to amend the ICT Act-1973 by inserting the word ‘individual’, where in the main Act there were 4 groups to be tried under the ICT Act-1973. I think for this very reason the petitioner should be discharged.  Now I would like to read Section 5(2) and 5(3) of the Army Act-1952.
5(2) On such notification being made any provisions of this Act so applied shall have effect in respect of persons belonging to any such force as they have effect in respect of persons subject to this Act holding in the Bangladesh Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force; and shall have effect in respect of persons who are employed by, or are in the service of, or are followers of, or accompany any portion of any such force as they have effect in respect of persons subject to this Act under clause (c) of sub-section (1) of section 2.

(3) While any of the provisions of this Act apply to any such force, the Government may, by notification, direct by what authority any jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of that force, and may suspend the operation of any other enactment for the time being applicable to that force.
Now, it is my humble submission that it is a substantive law and the amendment of 2009 cannot go back in 1971. [Then he read out the several paragraphs of the Proceedings of Parliament.]

So, it starts from the very day the gazette is brought. How would we suppose to say that the amendment of 2009 is applicable to the case of 1971, where other than mentioning the effectiveness of the Act from 1971 it has been said in the 1st part of the Amendment Bill 2009 that it would come into force as early as possible?

Justice Nizamul Haq: Mr. Islam, how could you answer the matter that the original ICT Act was promulgated in 1973 whereas the offences were committed in 1971? If the amendment of 2009 is not applicable for the acts committed in 1071 then, ICT Act-1973 would have to face the same consequence when going to try the matters of 1971.

Barrister Fakhrul Islam: My Lord, the Act was intended for the people classified under 4 groups [a person who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law] as mentioned in Article-47 (3) of the Constitution of Bangladesh.

The dates from when the Act ought to be active is given by a footnote, that means it is effective from that day.

In our case- Applicability of Army Act-1952 on Pilkhana Carnage case and Article 152 of the Constitution are some of the main grounds of justification for our case. Article 152(2) says that—

The General Clauses Act, 1897 shall apply in relation to this Constitution as it applies in relation to an Act of Parliament;

We’ve submitted before that though the Money laundering Act has been promulgated on 2009, but it has been declared effective from 2008. So like this, it ought to be mentioned in the amendment bill of 2009 that it will be effective from 1971, but it has only been mentioned that it will be effective as early as possible.

Here the petitioner is not asking for any clemency. It comes back again that whether he is to be tried under the ICT Act-1973.

Justice Fazle Kabir: Here the accused person is not accused under the Collaborators Ordinance. So, the matter of clemency is not relevant here though.

Barrister Fakhrul Islam: My Lord, the Prosecutor should have asked for the trial of those 195 Prisoners of War at first, but they did not do so.

Justice Nizamul Haq: There is no scope to do so.

Barrister Fakhrul Islam: No, they could do so under section-3 of the ICT Act-1973, My Lord.

Barrister Fakhrul Islam: Another point here is that, the learned Prosecutors have said they are not representing the Government, other than that they are representing the martyrs, and their families. But whose family they are representing actually, I would like to know.

Justice Nizamul Haq: They are representing all the families of the martyrs.

Barrister Fakhrul Islam: If they are trying to say that they are independent, then that would not be correct, My Lord, as they have been appointed by the Government of the People’s Republic of Bangladesh.

Justice Nizamul Haq: No, Mr. Islam; here everyone is independent; the appointment was a part of formalities to start the tribunal.

Barrister Fakhrul Islam: And about the formal Charge, Your Lordship may you please look at the page-15 (last part, 9th line) [then he read it out].

Then please look at page-41. [He read it before the Tribunal]

It has found here that after the departure of the perpetrators, S.Q. Chowdhury and his sister came and they departed after laughing and mocking at the victims.

Now, Your Lordship, I would like to know- whether Mocking/ Laughing falls under the purview of “Crimes against Humanity”.

Adjournment until after lunch

Ahsanul Huq Hena took over from Fahkrul Islam as defence counsel for Salauddin Quader Chowdhury.

Defence: My lord, I am here to answer the meaning of ‘and’ as referred in Art. 35(2) of our constitution Prosecuted and Punished.

What does the word ‘and’ mean. According to the Brinda’s Interpratation of statute where the intention of the legislature is clear then the word ‘and’ may be used as ‘or’.

Chair: learned defence, sometimes ‘may’ refers as ‘shall’ but not always. It is an exception when ‘may’ refers ‘shall’.

Defence: My lord, this is my humble submission as the question was raised. There may have hundreds of answer but my answer is ‘and’ may be referred as ‘or. Therefore these two words are not conjunctive. There may have thousands of decision all over the world against or in favour of my decision but this matter totally depend upon the wisdom of the judges.

In fact this law was amended with an ulterior motive. Individual and groups of individual has been added by an amendment.

There are 6 cases which have been included in the formal charge by the prosecution but what is their present status is not mentioned yet. My lord, though we cannot produce this cases before the Tribunal still I am trying to find out the present status of the case.

Chair: How many petitions have you filed before the Tribunal?

Ahsnul Huq Hena: My lord, I have filed only one petition before the Tribunal. If we know the present status of these cases then there will be no chance of any problem arising in near future. There are 6 cases among them 3 are pending under the collaborators Order-1972 and other 3 are pending under the penal code-1860. If we do not know the present position of these cases then how we will determine the consequence of these cases? That is why for ends of justice and for adjudicating the matter properly, 7 days is needed. So, for coming to a conclusion and for ends of justice, we need 7 days.

Chair: We will not pass an Order for an adjournment. You can pray for time and produce material any time before the Tribunal. Material can be presented at any time even before the pronouncement of judgment.

Defence: My lord, I think there should be no obstruction in response of finding present status of 6 cases.

Chair: Learned defence counsels, bring those material and place it at any time.

Defence: My lord, if we are able to know the present position of these 6 cases then it will be good for both sides. We can also sort it out easily whether 6 cases come within the charges of 25 cases. Prosecution has submitted these 6 cases but they submitted no further document yet. Then it will be convenient for both sides if we produce that document. There will be no chance of being prejudiced of prosecution. We will be prejudiced if we do not raise that point. As we know ‘a drowning man catches straws before drowning’. My lord, prosecution put this allegations in the formal charge so I think they have to answer the question what is the present position of the case.

At this point, Prosecutor Zead –al-malum raised objection and said defence is wasting valuable time of the Tribunal without coming to the legal point of case.

Defence: My lord, I believe my learned friend is a gentleman. I never interrupted when prosecution submits; it is normal courtesy which should be maintained by all.

Justice Zaheer: I have a query, just one question I want to ask to the Prosecution. Prosecution please give me an answer what is the present status of Natun Chandra Singh case.

Zead-al-malum: My lord, prosecution is always present to give answer to the question made by judges. I should give answer to your question.

Defence: We know it that Collaborators Order was repealed by Justice Sayem in 5th amendment, after that 5th amendment was repealed 15th amendment. So it is clear that Collaborators Order revived by the constitution. My lord, then how can we avoid existing law.

Jusutice Nizamul Huq: Is the offence under the collaborators Order and ICT same? In which schedule it is mentioned?

Defence: My lord, preamble is more important than the schedule. From the objective of the preamble of collaborators Act, it is very much possible to be clear about the offence. No, offence is not same. Offences are described in 4 parts of the collaborators Order 1972.

My lord, I have some further question. How can a single killing can be considered as Genocide? Killing of how many people would constitute Genocide? Then who were the other persons involved in Genocide? Whether there is any other crime committed within the same transaction or not?

In ICT provision the term ‘Groups of individual’ is clearly mentioned then why only one person is chosen? For committing same crime why only one person is prosecuted?

Chair: Learned defence have you heard of “Eichmann case”? In that case, he was hanged for giving direction to kill Jewish people.That was a military Tribunal. In that case Eichman was directed to be punished but the person who were directly involved in the offence of killing are not punished.

Defence: My lord, ICT is not a Bible or Koran. It is subject to criticism if it is not maintaining International Standard.

Chair: Then learned defence you should suggest International standard. Our Crime is international but our court is not international. It is a domestic court.

Defence: My lord, just I want to submit that these 6 cases should be excluded from the 25 charges.

Chair: Is there any shortage of offences in section 3(2) of ICT 1973, e.g. crime against humanity, genocide, war crimes? Have you any suggestion in this regard.

Defence: No, there is no shortage but this offence already was in the Collaborators Act-1972.

Chair: No, I want to say whether there is any shortage in Sallahuddin Quader Choudhury’s matter?

Defence: Yes, there is shortage against the allegation of Sallahuddin Qader Choudhury matter. Here some offences are included in the formal charges which are not listed as offence under ICT Act-1973. Like theft, offences within the same transaction are not the matter of ICT 1973.

Then Mr. Malum came to the dais for answering the question of Justice Zaheer. Justice Zaheer said to him Mr. Malum do not be angry with me. It is my queries only.

Mr. Malum replied that we are always prepared to give answer before the Tribunal (angrily said). We are always under pressure.

Chair: Here ‘We are always under pressure’ means you and defence as well.

Mr. Malum: No, my lord only the prosecution. Now, I am coming to the point. Here the Double jeopardy is fully constitutional matter as per Art.35 (2) of our Constitution. However, this Tribunal has no jurisdiction to deal with the constitutional matter as well as Code of criminal procedure is not its matter also.

Chair: Could not we say Art.35(2) is a constitutional bar?

Mr. Malum: No, It is not specified in ICT Act 1973. Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial. And in relation to case of Natun Chandra Singh case there are 30 lines in the formal charge. By a writ petition in 1979 it is stated as this case is pending.

Justice Zaheer: What is the present status of the case?

Mr. Malum: It is not known.

Justice Fazle Kabir: This Act was amended in 2009 and amendment of the constitution was in 2011. They have given a ruling of appellate division where it is specified that there will be no retrospective effect. What do you say in this regard?

Mr.Malum: Yes, defence have said these all amendment is invalid.

Justice Zaheer: They did not say these all are invalid so far I remember. They have said these amended section or article did not mention about the retrospective effect of the offence of 1971. Only it is mentioned that this Section and Article will be effective as per as possible. These sections are applicable to that offence only which is committed after the amendment of the Act and the constitution as well.

Mr. Malum: Basically ruling of the appellate division related to the BDR case. BDR case and the ICT is not same. According to the sec 26 of the ICT 1973: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Justice Zaheer: Learned defence counsel says, allegation against Sallahuddin Quader Choudhury is invalid, not the law is invalid.

Mr. Malum: BDR case should not be used as principle of ICT 1973. Principle of Appellate division cannot be applied in ICT. Therefore 25 offences which are brought against accused-petitioner is completely relevant and accused-petitioner is fully engaged to the described offence of the formal charge. It is proved enough from the activities of 25th March to 16th December. So it is clear that he has committed offence under sec 3(2)(a),(c) of the ICT Act 1973. There is no such strong ground from the defence counsel by which any of the charge can be omitted from the 25 charges. Therefore, my humble submission before the Tribunal is to frame a charge against the accused-petitioner.

Then one of defence counsels Mr. Fakhrul Islam came to the dais and file a review application.

Chair: We have already heard this matter before at the time of your argument. S.Q choudhury shouted from his doc and said, My lord this grounds are totally new. This petition is filed by me and gives me a chance to submit it before the Tribunal.

Justice Nizamul: No, accused himself will not get chance; if we give this chance to him then others accused will be deprived.

Fakhrul Islam: My lord, I want to refer some new grounds which have been prepared by accused-petitioner. I want to refer- to article 14(3) (b) of the ICCPR-1966; Art. 67(b) of Rome statute; Art. 2(2) of ICCPR-1966; Art. 4(4) of ICCPR-1966

Then he read out Article 14(3) (b) of ICCPR 1966, and said, Bangladesh as a state party of International Covenants and Treaty, Bangladesh should abide by the Law.

Justice NIzamul Huq: What do you want to say? We are bound to follow this International Covanants and treaties.

Fakhrul Islam: My Lord, It is fully depend upon the Tribunal what will be your decision. Just I humbly submit that many countries like Australia and Sri lanka have taken decisions of many cases from International Covenants and Treaties.

Chair: Learned defence, we have said it in other cases also that only those document will be provided to the defence upon which the case is relied. You will not get investigation report as prosecution did not rely upon them.

Then S.Q Choudhury again raised his hand from the dock and said my lord, they are not prepared. Petition has been prepared by me.

Chair: Petition is filed by your lawyer.

S.Q chowdhury: then my lord give me only 5 minutes for briefing the whole matter.

Chair: We have said before that accused will not get permission to say. Mr. Fakhrul Islam you please submit your petition.

S.Q Choudhury: Okay, My lord if fakhrul Islam comes to me then I can give him instruction briefly.

After that Mr. Fakhrul Islam went to S.Q choudhury and came back to the dais and referred to Article 25 of our constitution. By referring to Article 25 of our constitution, he said that it is clear that every state party has a duty to follow all the requirements of International Covenant and Treaties.

Justice Zaheer: State party of the International Covenants and Treaties are not bound to follow all the rules and regulations of International covenants and treaties. I can refer Texas Garcia case where Vienna convention 1969 has not been followed though that country was the state party of this Convention.

Then court was adjourned for S.Q Choudhury matter till 13.03.12. Apart from charge framing, Order of all other petition will be given on 13th March, the tribunal said.

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