20 June 2013
To read the previous day's proceedings
The matter was scheduled as item no. 5 in today’s cause list. However, at 09:30 am, in between item nos. 1 & 2, the CJ asked senior Advocate Amirul Islam, the AG and one of the counsels for Abdul Quader Mollah who is enrolled to practice before Appellate Division (as the senior counsel Abdur Razzaq was absent), to come forward. He also asked the junior of Abdur Razzaq, Mr Shishir Munir (who regularly assists Mr Razzaq in the hearing) to listen. Then the CJ pronounced that the bench will hear amicus curie on the issue that whether the 4th Amendment of the ICT Act 1973 is applicable for Abdul Quader Mollah. He further added that the bench will pass an order regarding that today. He then asked the AG to provide the original and amended ICT Act and Rules to the amicus curies during the vacation time (22nd June to 6th July). The bench moved to the next item.
The AG came to dais and submitted, "I shall first refer some of the decisions of your lordships then I shall make my submission on customary international law. And finally I shall make my submission on sentence."
To read the previous day's proceedings
The matter was scheduled as item no. 5 in today’s cause list. However, at 09:30 am, in between item nos. 1 & 2, the CJ asked senior Advocate Amirul Islam, the AG and one of the counsels for Abdul Quader Mollah who is enrolled to practice before Appellate Division (as the senior counsel Abdur Razzaq was absent), to come forward. He also asked the junior of Abdur Razzaq, Mr Shishir Munir (who regularly assists Mr Razzaq in the hearing) to listen. Then the CJ pronounced that the bench will hear amicus curie on the issue that whether the 4th Amendment of the ICT Act 1973 is applicable for Abdul Quader Mollah. He further added that the bench will pass an order regarding that today. He then asked the AG to provide the original and amended ICT Act and Rules to the amicus curies during the vacation time (22nd June to 6th July). The bench moved to the next item.
The AG came to dais and submitted, "I shall first refer some of the decisions of your lordships then I shall make my submission on customary international law. And finally I shall make my submission on sentence."
Before he formally started his submission, the CJ told him, "We are not putting you in pressure anyway. Please make your submission on your own way."
The first case cited by the AG was 1981 SCC 752, which is at serial no. 21 in the context of the paper book submitted by them. Here the relevant paragraph is 8 which can be found at the left hand side of the running page 93. He readout the whole paragraph. The CJ asked him, "What is your submission from this case? What do you want to say?" The AG replied, "The incident took place more than 40 years ago. Lots of things happened in between." But Wahab J. said, "That is not the issue. Here the issue is- the P.W. did not deposed that before the I.O. or in the other instances. Kazi Rosy has written a book on this recently, which is the exhibit-2, but she did not mention that in her book." Wahab then added, "Another problem is the case you have referred it was basically an appeal against the decision of High Court Division before the Appellate Division but this is not the case here." The AG replied, "I have just referred this case for principle."
The AG then referred his next case 2003 SCC 661, which is at page 294 of his paper book. The relevant paragraph he read from that case was paragraph 12. As soon as the AG finished reading the relevant paragraph, Mahmood J. said, "It is also in our DLR (Dhaka Law Reports). Similar principle can be found at 29 DLR (AD) where one part of evidence has proved wrong, other part can be accepted.
After that, the AG provided a written submission on 'meaning of international law, sources of international law and the relationship of international law with municipal law' to the bench. He then simply readout that written submission before the court.
He then moved to a case [ref: 7 BLC (AD) 67] the page 1 of 5th part of their paper book. Here the relevant paragraph is 3 where it was decided, "Article 13 of the UDHR which is an international instrument but not a part of the municipal law, therefore, it has no binding force."
The AG then referred to 2 further cases on the same principle: 32 DLR (AD) 194, relevant paragraph 6 and AIR 1983 (Karnataka) 85, relevant paragraphs are 17 & 18.
He then cited another case [AIR 1954 (Calcutta) 591]. Here the relevant paragraph 18 where it has been decided that if the treaty is not signed then there is no binding force. He further cited another case [AIR 2005 (SC) 1646] where it has been decided thatinternational treaty unless enacted by the legislature cannot be enforced. Chowdhury J. added, "Lord Denning has decided the same in the Ex parte Blackburn case." AG requested him, "May I have the citation please, my Lord?" Chowdhury J. replied, "I shall give you that afterwards." CJ added, "Mr Blackburn used to come before the court with public interest issues."
However, Wahab Miah J. disagreed and said, "But the Tribunal has relied on various foreign laws." AG said, "Your lordships have correctly discouraged me no to go through those laws." Sinha J. explained, "The other international tribunals were formed either by international agreements or security council resolutions. That is why they relied on international legal instruments. UN Security Council can take action if any country does not comply with their resolutions.
The first case cited by the AG was 1981 SCC 752, which is at serial no. 21 in the context of the paper book submitted by them. Here the relevant paragraph is 8 which can be found at the left hand side of the running page 93. He readout the whole paragraph. The CJ asked him, "What is your submission from this case? What do you want to say?" The AG replied, "The incident took place more than 40 years ago. Lots of things happened in between." But Wahab J. said, "That is not the issue. Here the issue is- the P.W. did not deposed that before the I.O. or in the other instances. Kazi Rosy has written a book on this recently, which is the exhibit-2, but she did not mention that in her book." Wahab then added, "Another problem is the case you have referred it was basically an appeal against the decision of High Court Division before the Appellate Division but this is not the case here." The AG replied, "I have just referred this case for principle."
The AG then referred his next case 2003 SCC 661, which is at page 294 of his paper book. The relevant paragraph he read from that case was paragraph 12. As soon as the AG finished reading the relevant paragraph, Mahmood J. said, "It is also in our DLR (Dhaka Law Reports). Similar principle can be found at 29 DLR (AD) where one part of evidence has proved wrong, other part can be accepted.
After that, the AG provided a written submission on 'meaning of international law, sources of international law and the relationship of international law with municipal law' to the bench. He then simply readout that written submission before the court.
He then moved to a case [ref: 7 BLC (AD) 67] the page 1 of 5th part of their paper book. Here the relevant paragraph is 3 where it was decided, "Article 13 of the UDHR which is an international instrument but not a part of the municipal law, therefore, it has no binding force."
The AG then referred to 2 further cases on the same principle: 32 DLR (AD) 194, relevant paragraph 6 and AIR 1983 (Karnataka) 85, relevant paragraphs are 17 & 18.
He then cited another case [AIR 1954 (Calcutta) 591]. Here the relevant paragraph 18 where it has been decided that if the treaty is not signed then there is no binding force. He further cited another case [AIR 2005 (SC) 1646] where it has been decided thatinternational treaty unless enacted by the legislature cannot be enforced. Chowdhury J. added, "Lord Denning has decided the same in the Ex parte Blackburn case." AG requested him, "May I have the citation please, my Lord?" Chowdhury J. replied, "I shall give you that afterwards." CJ added, "Mr Blackburn used to come before the court with public interest issues."
However, Wahab Miah J. disagreed and said, "But the Tribunal has relied on various foreign laws." AG said, "Your lordships have correctly discouraged me no to go through those laws." Sinha J. explained, "The other international tribunals were formed either by international agreements or security council resolutions. That is why they relied on international legal instruments. UN Security Council can take action if any country does not comply with their resolutions.
Wahab J. added, "Our Tribunal is the first domestic tribunal of its kind. In the case of international tribunal, the judges are normally foreign and the country has to pay the costs."
CJ added, "The countries those have adopted international instruments did not have their own rules and legal structures but we have long legal heritage." But Chowdhury J., Wahab J. and CJ finally asked to AG, "Mr Razzaq, learned counsel for convicted petitioner argued, in the ICT Act there are provisions that we should follow international law. What is your submission against that?
In response to that the AG referred the P.O. (Presidential Order) No. 8 of 1972 (International Financial Institution Order, 1972) which is at page 118 of his paper book. He particularly referred the 2nd schedule of that P.O. “by adopting the articles of the international instruments.” Mahmood J. agreed with this submission of the AG and added, “In the book of Mahmudul Islam (an well-accepted Bangladeshi jurist and senior lawyer), he opined a international legal instrument cannot be implemented/enforced unless it has been incorporated in the domestic law.”
The AG then started to submit on the last part of his submission which was on “sentence”. In doing so, he first moved to the 1st part of his paper book, paragraph 428 of the ICT judgement and quote, “The principle of proportionality implies that sentences must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender.” and he then submitted, “this principle is absolutely not in our law.” In support of that argument he referred section 20 (2) of the ICT Act 1973. Chowdhury J. asked him, “What do you want to say Mr. AG?” The AG replied, “The reasons given by the tribunal for not giving sentence to respondent is absent in our ICT Act. Why should we borrow such principles from other tribunals/laws?”
After that Sinha J. asked to AG, “Mr AG, what does ‘imprisonment for life’ means? Can you please explain a bit?” AG replied, “According to our Penal Code it is 30 years, my Lord.” Sinha J. disagreed and said, “No, there is no such provision in our Penal Code. It means ‘cessation of life’.” AG then added, “Why should we go through the Penal Code?” Mahmood J. added, “Well, it is in the Jail Code but it is not applicable in this matter.” He further added referring a case law [(2005) 7 SCC 317], “‘imprisonment for life’ means ending of life.” Sinha J. added, “There is Privy Council decision regarding this issue. Please refer that decision.”
Chowdhury J. pointed out another issue, “in the provision ‘death’ is prior to other punishment- is there any significance of such provision?” AG then refer the relevant section 20 (2) and read out the same. Sinha J. then opined, “Not awarding the death sentence is an exception.” AG added, “If death sentence is not awarded then alternative should be mentioned.” Chawdhury J. then further added, “There is no such explanation in the judgement why death sentence has not been awarded.” He then provided the citation of the case Ex parte Blackburn, which referred earlier, to AG, “the citation of Ex parte Blackburn is All E. R. (1981) 1380.” He further said, “Similar decision given by Lord Denning in Wairter (1969).”
The AG then submitted, “If death sentence is not awarded then it is an injustice to the society. I shall just refer the case citation in this regard”. He then cited (1996) 6 SCC 271, (2008) 4 SCC 434, (2010) 9 SCC 1. He then said, “I shall just readout a paragraph from the 1st case.” It was already 11: 07 am then and the CJ said to him, “We are not going to sit again after the tee break today as it is the last day before the vacation starts. You better submit it after the vacation.”
In response to that the AG referred the P.O. (Presidential Order) No. 8 of 1972 (International Financial Institution Order, 1972) which is at page 118 of his paper book. He particularly referred the 2nd schedule of that P.O. “by adopting the articles of the international instruments.” Mahmood J. agreed with this submission of the AG and added, “In the book of Mahmudul Islam (an well-accepted Bangladeshi jurist and senior lawyer), he opined a international legal instrument cannot be implemented/enforced unless it has been incorporated in the domestic law.”
The AG then started to submit on the last part of his submission which was on “sentence”. In doing so, he first moved to the 1st part of his paper book, paragraph 428 of the ICT judgement and quote, “The principle of proportionality implies that sentences must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender.” and he then submitted, “this principle is absolutely not in our law.” In support of that argument he referred section 20 (2) of the ICT Act 1973. Chowdhury J. asked him, “What do you want to say Mr. AG?” The AG replied, “The reasons given by the tribunal for not giving sentence to respondent is absent in our ICT Act. Why should we borrow such principles from other tribunals/laws?”
After that Sinha J. asked to AG, “Mr AG, what does ‘imprisonment for life’ means? Can you please explain a bit?” AG replied, “According to our Penal Code it is 30 years, my Lord.” Sinha J. disagreed and said, “No, there is no such provision in our Penal Code. It means ‘cessation of life’.” AG then added, “Why should we go through the Penal Code?” Mahmood J. added, “Well, it is in the Jail Code but it is not applicable in this matter.” He further added referring a case law [(2005) 7 SCC 317], “‘imprisonment for life’ means ending of life.” Sinha J. added, “There is Privy Council decision regarding this issue. Please refer that decision.”
Chowdhury J. pointed out another issue, “in the provision ‘death’ is prior to other punishment- is there any significance of such provision?” AG then refer the relevant section 20 (2) and read out the same. Sinha J. then opined, “Not awarding the death sentence is an exception.” AG added, “If death sentence is not awarded then alternative should be mentioned.” Chawdhury J. then further added, “There is no such explanation in the judgement why death sentence has not been awarded.” He then provided the citation of the case Ex parte Blackburn, which referred earlier, to AG, “the citation of Ex parte Blackburn is All E. R. (1981) 1380.” He further said, “Similar decision given by Lord Denning in Wairter (1969).”
The AG then submitted, “If death sentence is not awarded then it is an injustice to the society. I shall just refer the case citation in this regard”. He then cited (1996) 6 SCC 271, (2008) 4 SCC 434, (2010) 9 SCC 1. He then said, “I shall just readout a paragraph from the 1st case.” It was already 11: 07 am then and the CJ said to him, “We are not going to sit again after the tee break today as it is the last day before the vacation starts. You better submit it after the vacation.”
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