9 July 2013
To see previous day's proceedings
Amirul Islam amicus arguments: Amirul Islam continued to read out from his written amicus curiae submission and made arguments
During proceedings, barrister Amir commented that, “this is the most appropriate Act (amendment) enacted by the parliament.” He then read out the statement of purpose of the amendment and again claimed that the amendment is an appropriate Act. Then, the following conversation took place between Barrister Amir and the judges of the bench:
Wahab J. commented him, “We are not concerned about the other cases; for the other accused the amendment is absolutely applicable but Abdul Quader Molla’s judgement was declared before the amendment was passed.”
Amir then replied, “I am surprised that the court has been misguided by the submission by the respondent that the amendment is not applicable to the respondent.”
The CJ commented, “You are basically trying to say that that the amendment is protected law under article 47 of the constitution?”
Amir replied, “And also because of the last line article 103[1] (2) (c) ‘such other cases’.”
Chowdhury J. asked for a clarification on another issue from the amicus curiae Barrister Amir, “What does ‘continuing’ means (in respect of the last amendment of the ICT Act)? Is that just address the cases continuing before the tribunal only; or also include the cases continuing before the appellate tribunal (i.e. before them)? Amir did not give any straightforward answer to that question. He simply replied that, “in does not mean any particular cases.”
CJ argued, “Mr Razzaq (counsel for respondent) submitted that other cases (before the tribunal) are absolutely ‘continuing’ but this particular case is not continuing (as the judgement has already been declared.” Barrister Amir replied, “Mr Razzaq knows very well that the term ‘continuing’ in the amendment covers this case as well.”
It has been then argued that the ‘statement of purpose’ is not a part of the law. However, Amir argued, “Parliament has given power to bring any cases to Appellate Division and it is an omnibus and unqualified power. (Article 103)”
Wahab J. brought another issue, “In the article the relevant term is ‘all citizens’. Is the ‘state’ a citizen?” Amir replied, “The state is committed to protect the situation. The prosecutor is acting on behalf of the people.” He further argued, “Moreover, under article 47 (3) it is protected and article 103 (2) has got certain limitations.” After that he continued reading out his written submission
Mahamadul Islam amicus arguments: After Barrister Amir, senior advocate Mahmudul Islam came to the dais to make his submission as amicus curiae. He did not submitt any formal written submission alike 2 of his predecessors. He gave straightforward answer to the 1st question (whether customary international law applies to cases under the ICT Act 1973). : 'No' he said. He explained, “In USA if the president signs, it becomes the law of the land. However, in UK it is not.” The CJ added, “Yes, we need to enact the law to give effect to that.”
Mahmudul then referred a decision of Pakistan Supreme Court (Saidul Alam’s case) answering the court’s query in this regard.
After the break, Mahmudual Islam continued. He started to make his submission referring page 7 of the Bellion’s Interpretation of Statute. He quoted from last paragraph “...municipal law cannot enforce any right/obligation under the international law unless the House of Lords enacts it.” He then referred an English case (MW vs Department of Trade & Industry [1990 2 App. Cases 480]) and readout the summary of the case.
To see previous day's proceedings
Amirul Islam amicus arguments: Amirul Islam continued to read out from his written amicus curiae submission and made arguments
During proceedings, barrister Amir commented that, “this is the most appropriate Act (amendment) enacted by the parliament.” He then read out the statement of purpose of the amendment and again claimed that the amendment is an appropriate Act. Then, the following conversation took place between Barrister Amir and the judges of the bench:
Wahab J. commented him, “We are not concerned about the other cases; for the other accused the amendment is absolutely applicable but Abdul Quader Molla’s judgement was declared before the amendment was passed.”
Amir then replied, “I am surprised that the court has been misguided by the submission by the respondent that the amendment is not applicable to the respondent.”
The CJ commented, “You are basically trying to say that that the amendment is protected law under article 47 of the constitution?”
Amir replied, “And also because of the last line article 103[1] (2) (c) ‘such other cases’.”
Chowdhury J. asked for a clarification on another issue from the amicus curiae Barrister Amir, “What does ‘continuing’ means (in respect of the last amendment of the ICT Act)? Is that just address the cases continuing before the tribunal only; or also include the cases continuing before the appellate tribunal (i.e. before them)? Amir did not give any straightforward answer to that question. He simply replied that, “in does not mean any particular cases.”
CJ argued, “Mr Razzaq (counsel for respondent) submitted that other cases (before the tribunal) are absolutely ‘continuing’ but this particular case is not continuing (as the judgement has already been declared.” Barrister Amir replied, “Mr Razzaq knows very well that the term ‘continuing’ in the amendment covers this case as well.”
It has been then argued that the ‘statement of purpose’ is not a part of the law. However, Amir argued, “Parliament has given power to bring any cases to Appellate Division and it is an omnibus and unqualified power. (Article 103)”
Wahab J. brought another issue, “In the article the relevant term is ‘all citizens’. Is the ‘state’ a citizen?” Amir replied, “The state is committed to protect the situation. The prosecutor is acting on behalf of the people.” He further argued, “Moreover, under article 47 (3) it is protected and article 103 (2) has got certain limitations.” After that he continued reading out his written submission
Mahamadul Islam amicus arguments: After Barrister Amir, senior advocate Mahmudul Islam came to the dais to make his submission as amicus curiae. He did not submitt any formal written submission alike 2 of his predecessors. He gave straightforward answer to the 1st question (whether customary international law applies to cases under the ICT Act 1973). : 'No' he said. He explained, “In USA if the president signs, it becomes the law of the land. However, in UK it is not.” The CJ added, “Yes, we need to enact the law to give effect to that.”
Mahmudul then referred a decision of Pakistan Supreme Court (Saidul Alam’s case) answering the court’s query in this regard.
After the break, Mahmudual Islam continued. He started to make his submission referring page 7 of the Bellion’s Interpretation of Statute. He quoted from last paragraph “...municipal law cannot enforce any right/obligation under the international law unless the House of Lords enacts it.” He then referred an English case (MW vs Department of Trade & Industry [1990 2 App. Cases 480]) and readout the summary of the case.
He summarized, “...dismissing the appeal the court decided that the municipal court is not competent enough to decide the matter as it requires alternate domestic law.” He further referred European Convention of Human Rights (enactment of customary international law) and the Human Rights Act 1998 (domestic law in UK) in support of his argument. He further argued, “English Parliament cannot make law contrary to the European Convention of Human Rights. English Parliament cannot bind its successor (future parliament). He then referred article 47 (3) of our constitution.
After that Mahmudul showed two Bangladeshi decisions. The first one is 2001 BLD (AD) 69 by Justice Bimalendu Bikash Rai Chowdhury. He read out the particular part and Wahab J. commented, “Learned Attorney General has also referred this case.” Chowdhury J. cited some English (UK) decisions on similar issues. However, Mahmudul commented, “There are lots of Bangladeshi cases in this regard; foreign decision does not have any persuasive force where there are domestic cases.”
The next case Mahmudul referred was a High Court Division case (which is not binding to the Appellate Division) and the citation is 61 DLR 375. He further cited an Indian Supreme Court case AIR 1999 (SC) 625. Here, the relevant is page 664, paragraph is 27. He then submitted, “The essence of the ‘retrospective effect’ is we should not look for moral justifications.”
The CJ then made a query, “When two appeals are pending before the same court on the same matter, what is opinion about such a situation.” Mahmudul answered the question sharing his own experience from his early days of practising law.
Chowdhury J. made another hypothetical query, “Mr Islam, guess there was no appeal by the state. In such a situation whether this court has any power to increase the sentence?” Mahmudul replied, “Yes, absolutely yes.” He referred one of the cases of his early days of practise where a magistrate of 1st class gave conviction to his client for 1 year and on appeal by him the appeal judge increased the conviction to 3 years.” CJ then commented, “So, you are concern about the inherent power of the court.”
Sinha and Wahab JJ. made a further enquiry, “What is the situation during pendency of appeal was filed after the law has been changed?” Mahmudul replied, “They had an option to file the appeal before the law was changed but they did not choose so.” He then cited cases and read out relevant paragraph on effect of pendency. Wahab J. commented, “Appeal had to lodge within 30 days.” Chowdhury added, “He has a potential right of appeal.” Mahmudul replied, “In spite of article 47 (3) the fundamental principle of criminal jurisprudence supports that.” Chowdhury J. added, “yes, in our Code of Criminal Procedure (CrPC 1898) there is provision for enhancement of punishment.” However, both the CJ and amicus curiae Mahmudul Islam commented that, “You need not to go CrPC; this court can enhance punishment by virtue of it’s ‘inherent power’.”
Chowdhury J. commented in respect of the customary international law, “The ICT Act 1973 has incorporated customary international law impliedly when it was enacted in 1973.” Mahmudul opined, “We shall take so far it incorporated the customary international law. For example, if one of the elements of customary international law is missing, it should not be invalid.”
CJ and Chowdhury J made a further enquiry, “Whether relevant International courts’ judgements can be used as persuasive authority?” Mahmudul replied straightaway that, “If there is no a Bangladeshi case law in respect of any such relevant issues, only then those judgments can be used as persuasive authority.”
Chowdhury J. summarised Mahmudul submission, “So you are saying that the amendment is applicable to Abdul Quader Molla and the customary international law is applicable so far it has been incorporated.” Mahmudul replied, “Yes.”
Thus he finished his submission.
Azamul Hossain amicus arguments: It was 1:06 pm then and the next amicus curiae Azmalul Hossain QC (Senior Advocate of the Supreme Court of Bangladesh and a Queen’s Counsel in UK) was ready to make his submission. The CJ told him, “We shall hear you tomorrow.” But Mr Hossain insisted the court to at least start hearing his submission. Then the bench allowed him to start his submission.
His submission can be downloaded here
After that Mahmudul showed two Bangladeshi decisions. The first one is 2001 BLD (AD) 69 by Justice Bimalendu Bikash Rai Chowdhury. He read out the particular part and Wahab J. commented, “Learned Attorney General has also referred this case.” Chowdhury J. cited some English (UK) decisions on similar issues. However, Mahmudul commented, “There are lots of Bangladeshi cases in this regard; foreign decision does not have any persuasive force where there are domestic cases.”
The next case Mahmudul referred was a High Court Division case (which is not binding to the Appellate Division) and the citation is 61 DLR 375. He further cited an Indian Supreme Court case AIR 1999 (SC) 625. Here, the relevant is page 664, paragraph is 27. He then submitted, “The essence of the ‘retrospective effect’ is we should not look for moral justifications.”
The CJ then made a query, “When two appeals are pending before the same court on the same matter, what is opinion about such a situation.” Mahmudul answered the question sharing his own experience from his early days of practising law.
Chowdhury J. made another hypothetical query, “Mr Islam, guess there was no appeal by the state. In such a situation whether this court has any power to increase the sentence?” Mahmudul replied, “Yes, absolutely yes.” He referred one of the cases of his early days of practise where a magistrate of 1st class gave conviction to his client for 1 year and on appeal by him the appeal judge increased the conviction to 3 years.” CJ then commented, “So, you are concern about the inherent power of the court.”
Sinha and Wahab JJ. made a further enquiry, “What is the situation during pendency of appeal was filed after the law has been changed?” Mahmudul replied, “They had an option to file the appeal before the law was changed but they did not choose so.” He then cited cases and read out relevant paragraph on effect of pendency. Wahab J. commented, “Appeal had to lodge within 30 days.” Chowdhury added, “He has a potential right of appeal.” Mahmudul replied, “In spite of article 47 (3) the fundamental principle of criminal jurisprudence supports that.” Chowdhury J. added, “yes, in our Code of Criminal Procedure (CrPC 1898) there is provision for enhancement of punishment.” However, both the CJ and amicus curiae Mahmudul Islam commented that, “You need not to go CrPC; this court can enhance punishment by virtue of it’s ‘inherent power’.”
Chowdhury J. commented in respect of the customary international law, “The ICT Act 1973 has incorporated customary international law impliedly when it was enacted in 1973.” Mahmudul opined, “We shall take so far it incorporated the customary international law. For example, if one of the elements of customary international law is missing, it should not be invalid.”
CJ and Chowdhury J made a further enquiry, “Whether relevant International courts’ judgements can be used as persuasive authority?” Mahmudul replied straightaway that, “If there is no a Bangladeshi case law in respect of any such relevant issues, only then those judgments can be used as persuasive authority.”
Chowdhury J. summarised Mahmudul submission, “So you are saying that the amendment is applicable to Abdul Quader Molla and the customary international law is applicable so far it has been incorporated.” Mahmudul replied, “Yes.”
Thus he finished his submission.
Azamul Hossain amicus arguments: It was 1:06 pm then and the next amicus curiae Azmalul Hossain QC (Senior Advocate of the Supreme Court of Bangladesh and a Queen’s Counsel in UK) was ready to make his submission. The CJ told him, “We shall hear you tomorrow.” But Mr Hossain insisted the court to at least start hearing his submission. Then the bench allowed him to start his submission.
His submission can be downloaded here
No comments:
Post a Comment