Tuesday, September 17, 2013

Quader Molla appeal, day 12: Defence arguments

7 May 2013
To see the previous day's proceedings

On 18th April 2013, the bench heard for the first time matters relating to the defence appeal and had asked both parties to submit the concise statement by 2nd May 2013; although the chief counsel for accused petitioner Barrister Abdur Razzaq prayed 4 weeks’ time to submit the same, the bench allowed only 2 weeks.

At the beginning, the AG informed to the bench that they have submitted the concise statement. However, Barrister Razzaq, the chief counsel for accused petitioner in this matter, submitted an application for extension of time on 2nd May 2013

Mr Razzaq went to dais. And the CJ asked him, “Why did not you submit the concise statement?” Razzaq replied, “My Lord, we prayed for 4 weeks’ time but you allowed us only 2 weeks.” CJ argued, “You have submitted the application for extension of time on 2nd May and today is 7th May; it is already 3 weeks now. We have respect on you that is why we did not bring the matter up in the meantime.” In response to that Razzaq replied, “We have mutual respect for you as well. Please allow us to more weeks and I promise I shall not pray for any further time.”

Mr Razzaq then added, “One more thing, we have not received the concise statement of appeal no. 40 (appeal by the government).” The AG stood up and claimed, “No, my lord. We have served them.” CJ asked for the proof and AG took back the appeal bundle which he submitted to the bench officer at the beginning and he started to search for the proof. 

In the meantime, Mr Razzaq readout relevant provision from the Rules and Procedure of the Supreme Court in support of his claim. AG then agreed that the concise statement was not served as he did find any proof of serving it. 

CJ then asked Mr Razzaq to conclude his submission. Razzaq then submitted, “My respectful submission is to allow us 2 more weeks’ time to submit the concise statement.” And then CJ asked the AG to make his submission (if any) against that. 

AG then submitted, “In respect of extension of time my submission is it should not be allowed as we have already submitted our concise statement by the time given by you. I shall serve the copy of our concise statement by special messenger.” Sinha J. said, “You need not to submit it as it has already been submitted to the office of the register; they shall collect it.” CJ asked AG, “Have you finished your submission?” AG replied, “Yes my lord.”

The CJ then pronounced the order in respect of the time petition. He extended the time until 16th May 2013 (9 days instead of 2 weeks). He explained, “initially the counsel for accused petitioner prayed for 4 weeks and they submitted the application for extension of time on 2nd May i.e. already 5 days has passed after they submitted the application. Therefore, by 16th May it will be 2 weeks from the date of application.” (Time was calculated from the date of application of extension of time instead of today. The bench also considered the initial date of application and prayer for 4 weeks’ time.)

The tribunal then moved onto the appeal by the government.

Barrister Razzaq was present to represent Mollah. He went to dais and reminded the bench that he was submitting on sections 20 and 21 of the ICT Act 1973. He also gave 6 copies of a volume containing 6 judgements he was going to rely in his further submission.

At first, he referred page 195 of his volume and read out a part of an Indian judgement supporting his argument that strict interpretation of the statute should be considered. He kept reading, “..if there is any ambiguity then it will go in favour of the accused. If there are 2 interpretations, then the lenient one should be applicable.” 

He then read a long paragraph (paragraph 12) of an Indian Judgement [AIR 1991 (SC) 1289] 

After that, he moved to a short paragraph (paragraph 90) of another judgement [2004 1SCC 597] regarding section 21 of ICT 1973. 

Afterwards he moved to paragraphs 15 and 16 of a Bangladeshi judgement [56 DLR 454] on a criminal matter under the Nari O Shishu Nirjatan Daman Ain (Act to stop violence against women and children). In this case death reference was rejected as under section 11 of the said Act the only punishment was death penalty. He argued, “It is unprecedented anywhere in the world.” 

He then explained to US and UK court structure to show that there are 2 appellate forums in both countries e.g. in US there are Federal Courts and then State Supreme Court and then Supreme Court of USA, similarly in UK there Crown Courts, then Court of Appeal and then Supreme Court of England and Wales to try a criminal offence but here in Bangladesh there is only one appellate forum. 

Mr Razzaq then referred to another Bangladesh judgement [42 DLR (AD) 195] from page No. 195 of his volume, and 2 more Indian cases AIR 1992 (SC) 1785 at page 210 of this volume and AIR 2002 (SC) at page 207 of his volume (he read out the relevant paragraph page 208). 

He further referred a judgement by Lord Simon of Chancery Bench at page 232 of his volume. At this stage CJ asked Mr Razzaq, “What was the case about?” Mr Razzaq was could not gave a straightforward answer to that. Then the CJ argued, “It was not Lord Simon; he was in the House of Commons. How would he decide a case in the Chancery Division?” Mr Razzaq could not give a reasonable answer to that question.

The CJ then said, “We understand your submission. Do want to submit anything further?” In response Mr Razzaq replied, “My lords, I am just summing up.” He then referred and read out Article 16 of the Collaborators Act.

He then continued his submission. His main arguments were as under:

1) There is no restriction in the ICT Act 1973 to cross-examine prosecution witnesses;

2) The entire purpose of the appeal will be frustrated if AG’s submission is accepted.

He then referred a case from BLD 1966. He then said, “The general purpose of the cross examination is to find out the truth and it should be allowed.” 

He then readout section 10 (i) (e) of the ICT Act 1973
10. (1) The following procedure shall be followed at a trial before a Tribunal, namely:- ...
(e) the witnesses for the prosecution shall be examined, the defence may cross-examine such witnesses and the prosecution may reexamine them;
 and argued, “this proceeding should be followed.” Wahab J. added, “this provision is the same as the Evidence Act 1872”. 

He then readout rule 53 (ii) of the International Crimes (Tribunal-2) Rules of Procedure 2012. 

He then argued, “What has given by the Act cannot be taken away by Rules.” 

He further readout section 9 (3) of the ICT Act 1973:
(3) The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.
Wahab J. then suggested, “You should also refer the first proviso of section 162 of Code of Criminal Procedure 1898 where it is required to provide the copy of the prosecution statement to the defence. Is there any such provision in the ICT Act or Rules?”

Justice AHM Shamsuddin Chowdhury added, “Principle of fair justice demands it and you have got that, right?” Razzaq replied, “Yes, my lord.” 

Mr Razzaq then readout rule 18 (1) of the International Crimes (Tribunal-2) Rules and Procedures 2012 and he argued, “There is no provision to provide it to defence.” Mr Razzaq then moved to section 3 (2) of the ICT Act as in the charge no. 4, the accused respondent was charged with subsections (a), (g) and (h) of section 3 (2).

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