14 July 2013
To see previous day's proceedings
Ajmalul Hossain QC went to the dais and continued his submission from the previous day. “I shall come back to the issue of international customary international law and domestic law. Where there is a conflict with a domestic law and international customary law, the domestic law applies.” In support of his argument he referred Professor Brownly’s book on International Law (12th edition) and professor who is a Senior Counsel of South Africa and readout his writing about the application of the customary international law.
He then submitted, “Whenever someone does a crime, he knows that the charge will be formed and he will be prosecuted. I have raised 4 points in this regard. What is the consequence, assuming that customary international law is not applicable in this case, it will apply the municipal criminal law.”
He then submitted, “Sometimes international law itself recognises the municipal law.” He then moved to Tokyo trials. And then paragraph 14 of the ICTY instrument at page 9. He then submitted that ICTR recognised customary international law in the case of AKA YUOSUF.
He then readout from the ICC Statute, “If a national court trying such offences then national procedure applies.”
Ajmalul then made his submission on ‘relationship with international human rights law’. He explained the objective element and then made his submission on ‘individual criminal responsibility’ at pages 86 and 88 of his bundle.
After adjournment, Mr Ajmalul Hossain started his submission referring to Sheikh Hasina’s case [60 DLR (AD) 90] and he particularly relied on paragraph 80, 81, 82-85.
He then informed to the court that he is almost at the end of his submission and handed over a new bundle consisting further documents before the bench. He then readout from page 55 and page 20.
Chowdhury J. asked, “Can you please clarify the issue- whether the amendment in issue is a substitution or addition?” (regarding the issue whether section 6 of General Clauses Act is applicable here) Ajmamul replied, “In my understanding it is substitution.” and he referred page 35 of his bundle.
To see previous day's proceedings
Ajmalul Hossain QC went to the dais and continued his submission from the previous day. “I shall come back to the issue of international customary international law and domestic law. Where there is a conflict with a domestic law and international customary law, the domestic law applies.” In support of his argument he referred Professor Brownly’s book on International Law (12th edition) and professor who is a Senior Counsel of South Africa and readout his writing about the application of the customary international law.
He then submitted, “Whenever someone does a crime, he knows that the charge will be formed and he will be prosecuted. I have raised 4 points in this regard. What is the consequence, assuming that customary international law is not applicable in this case, it will apply the municipal criminal law.”
He then submitted, “Sometimes international law itself recognises the municipal law.” He then moved to Tokyo trials. And then paragraph 14 of the ICTY instrument at page 9. He then submitted that ICTR recognised customary international law in the case of AKA YUOSUF.
He then readout from the ICC Statute, “If a national court trying such offences then national procedure applies.”
Ajmalul then made his submission on ‘relationship with international human rights law’. He explained the objective element and then made his submission on ‘individual criminal responsibility’ at pages 86 and 88 of his bundle.
After adjournment, Mr Ajmalul Hossain started his submission referring to Sheikh Hasina’s case [60 DLR (AD) 90] and he particularly relied on paragraph 80, 81, 82-85.
He then informed to the court that he is almost at the end of his submission and handed over a new bundle consisting further documents before the bench. He then readout from page 55 and page 20.
Chowdhury J. asked, “Can you please clarify the issue- whether the amendment in issue is a substitution or addition?” (regarding the issue whether section 6 of General Clauses Act is applicable here) Ajmamul replied, “In my understanding it is substitution.” and he referred page 35 of his bundle.
Chowdhury J. disagreed and said, “Although it (it’s plain text) says that it (the amendment) has substituted but it is a matter of fact that it is an addition (added words only).” However, the CJ and Sinha J. commented, “Whatever it is, it is an amendment.” And Ajmalul Hossain QC added, “Even then section 6 of General Clauses Act does not apply here because it is not a repealed one; repealed means it has gone forever which has not been done here.”
He then moved to page 218 his first bundle. Mahmood J. then commented, “This is very similar to the situation; this case has already been cited by (amicus curaie) Mr Amirul Islam.” Ajmalul agreed said “even though I wanted to show you that.” He then cited Florida Supreme Court case. He summarised the facts. This case was about effect of change of judge and jury during a trial.
Ajmamul then moved page 21 of his bundle and submitted, “The change in the statute is clearly procedural.” He then summarised, “My lord, the customary international law not being consistent with the municipal law is not applicable.”
Rokon Uddin's amicus arguments: CJ then said to another amicus curiae barrister Rokon Uddin Mahmood, “Mr Mahmood you can start now.” Rokon replied, “Is that ok if I start from tomorrow? Its better to start fresh tomorrow.” However, the CJ insisted him to start so that they can continue hearing his submission on the next day.
He then moved to page 218 his first bundle. Mahmood J. then commented, “This is very similar to the situation; this case has already been cited by (amicus curaie) Mr Amirul Islam.” Ajmalul agreed said “even though I wanted to show you that.” He then cited Florida Supreme Court case. He summarised the facts. This case was about effect of change of judge and jury during a trial.
Ajmamul then moved page 21 of his bundle and submitted, “The change in the statute is clearly procedural.” He then summarised, “My lord, the customary international law not being consistent with the municipal law is not applicable.”
Rokon Uddin's amicus arguments: CJ then said to another amicus curiae barrister Rokon Uddin Mahmood, “Mr Mahmood you can start now.” Rokon replied, “Is that ok if I start from tomorrow? Its better to start fresh tomorrow.” However, the CJ insisted him to start so that they can continue hearing his submission on the next day.
Rokun Uddin's written submission is here
Rokon then came to the dais and submitted that he will just make his submission for a short while. He started by referring paragraph 3, 6, 10 and article 1A where the jurisdiction of the court has been stated. He argued, “if the state was unwilling to try such offence then the scenario could be something else. However, in our perspective the court is not unwilling.”
He then submitted, “Under the international law, criminal jurisdiction was never the part of customary international law.” He further submitted that “whether retrospective or not, it does not really matter. This court has inherent power to answer the question.” “For enhancing the sentence the amendment is not required even”, he added.
He finished his submission for that day citing the eminent jurist of 17th century named Hugo Grotius who opined, “there can never be the codification of the international criminal law.”
Rokon then came to the dais and submitted that he will just make his submission for a short while. He started by referring paragraph 3, 6, 10 and article 1A where the jurisdiction of the court has been stated. He argued, “if the state was unwilling to try such offence then the scenario could be something else. However, in our perspective the court is not unwilling.”
He then submitted, “Under the international law, criminal jurisdiction was never the part of customary international law.” He further submitted that “whether retrospective or not, it does not really matter. This court has inherent power to answer the question.” “For enhancing the sentence the amendment is not required even”, he added.
He finished his submission for that day citing the eminent jurist of 17th century named Hugo Grotius who opined, “there can never be the codification of the international criminal law.”
No comments:
Post a Comment