This is a copy of the article in today's New Age, (though it does includes some additional paragraphs about the appellate division review application at the end which were edited out of the paper's version due to space.)
Govt decides jail code does not apply to Molla
David Bergman
Abdul Quader Molla, whose execution warrant was sent on Sunday to the Dhaka Central Jail, will be executed without application of the jail code, New Age has confirmed.
The Inspector General of Prisons, Mainuddin Khandaker told New Age, ‘We will absolutely apply the 1973 International Crimes (Tribunal) Act.’
He said that this meant that ‘the jail code does not apply’ and that the jail authorities just have to wait ‘for direction from the home ministry’ before taking steps to execute Molla.
Quamrul Islam, the state minister for law, also told New Age, ‘Yes, the jail code does not apply, that is correct.’
Without application of the jail code, Molla will not have the right to take a period of 15 days to decide whether to seek presidential mercy.
According to rule 991(1) of the code, as amended in May 2010, the jail authorities should inform the convict immediately on receiving a warrant for execution that ‘if he desires to submit a petition for mercy [to the president], it must be submitted in writing within fifteen days … ’
Application of the code would also have allowed a further delay of 21 days in Molla’s execution after the president had rejected any mercy application that he might have made.
The inspector general told New Age that as far as he knew this was for the first time that the jail code would not apply to the execution of a person detained in a Bangladeshi prison.
‘The jail code normally applies to other cases, where there is no bar. But in this case, which is a new example for us, the International Crimes Tribunal is a completely comprehensive act and that is why the code does not apply,’ he said.
‘Yes, this is the first case of its kind.’
On 5 February, the International Crimes Tribunal convicted Molla on five counts of crimes against humanity involving offences during the 1971 war of independence sentencing him to life imprisonment. It also acquitted him on one other count.
Following large protests in the Shahbagh area of Dhaka demanding that Molla receive the death penalty, the government changed the law, allowing the prosecution to appeal against the sentences of life imprisonment, the defence already having that right.
On 17 September 2013, the appellate division, in a majority judgment, dismissed the appeals made by Quader Molla’s lawyers confirming the convictions on five counts, reversing the verdict of acquittal on one count, and handing down the death sentence on one count concerning his involvement in the massacre of a family.
The Inspector General of Prisons, who was until four days ago an additional secretary to the home ministry, referred to two sections of the 1973 law to explain why the jail code did not apply to Molla.
Section 26, he said, showed that ‘the Act overrides all other laws.’
The section states, ‘The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.’
He then referred to section 20(3) of the 1973 law, which states, ‘The sentence awarded under this Act shall be carried out in accordance with the orders of the Government.’
‘The government for us means the ministry of home affairs and we are waiting to get direction from the ministry before we proceed,’ he said.
He said that he had not received any order from the home affairs ministry as yet.
Khandaker, the IGP, explained to New Age that the prison service had not sought any legal opinion on this matter.
‘We are not supposed to write anything, or seek any legal opinion,’ he said.
When asked how he had come to the conclusion about the non-application of the jail code, he said, ‘It is not my interpretation. The 1973 law is there, and so is the verdict of higher court and warrant of execution.’
The IGP spoke to New Age after taking part in a meeting at the Law Ministry attended by amongst others the Shafique Ahmed, the adviser to the prime minister, and Quamrul Islam, the state minister for law
The opinion of the law ministry and the inspector general of prisons stands in contrast with the statement made on Sunday by the ICT prosecutor Zead Al Malum who said, ‘The prison authorities will now execute him in line with the jail codes’ and stated that only ‘a presidential clemency’ could stop the execution.
On hearing that the government had taken a decision that the jail code did not apply, Abdur Razzaq, the head of the defence legal team, said, ‘It is our question how will the government carry out the execution. Will it be by rope? Will it be by injection? How many seconds will Molla be kept hanging? All these details are only found in the jail code.’
‘The government is effectively saying that in the manner of hanging we will follow the jail code, but when it does not suit us we will not,’ he added.
Razzaq also pointed out that the jail authorities had all along accepted that the jail code applied to Molla and the other war crimes accused, ‘by giving them division’ and that ‘the prosecution and tribunal have never argued before that the jail code do not apply’.
The only other potential legal obstacle to the execution of Molla is the question of whether the defence have a right to seek a review of the order of the appellate division judgment.
Mahbubey Alam, the Attorney General, has stated that the constitutional provision does not apply to this appellate division judgment since it is an appeal from the international crimes tribunal.
Although, appellate division rules allows an application 30 days to file a review, Molla’s defence lawyers intend to file within the next few days, though the lawyers are yet to receive a certified copy of the judgment which must accompany any application.
The appellate division will first determine whether the application is ‘maintainable’ and if it decides this in the affirmative, whether there is any merit to the application.
Review applications are very rarely upheld. In order to succeed it is necessary for Molla’s lawyers to show that there is an 'error apparent on the face of the record.'
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