Wednesday, November 5, 2014

Delay in appellate division judgment creates uncertainty over right of review

This article was published on 4 November in New Age. See:
this page for what happens next for Kamaruzzman and
this page for the offence for which he was sentenced to death.

Delay in AD judgement creates uncertainty over review legality
David Bergman

The continuing delay in the publication of the appellate court’s December 2013 judgment rejecting Abdul Quader Molla’s last minute ‘appeal’ to overturn his death sentence has created uncertainty about whether those convicted by the International Crimes Tribunal can seek a review of an appellate court decision.
This has become significant in light of Monday’s decision by the court to uphold one of the death sentences imposed by the Tribunal against Jamaat leader Kamaruzzaman, and the intention of the defence lawyers to review this decision and September’s appellate court decision to uphold convictions against Delwar Hossain Sayedee.

Eleven months ago, on the morning of December 12, 2013, the Chief Justice ‘dismissed’ Abdul Quader Molla’s application seeking a review of its decision to impose a death sentence on him. This ruling allowed the Dhaka Central Jail authorities to hang the war crimes convict later that same day.
At the time, the appellate court did not provide any explanation for the ruling, and has, since then, not issued a written judgment.
If Molla’s application was dismissed because the court agreed with the view of the attorney general that those convicted of international crimes had no right to make an application, then Kamruzzaman and Sayedee would not now be able to file a review writ against the judgment.
However, if the appellate court only dismissed Molla’s application because it did not agree with the particular arguments made by the defence in seeking to set aside the sentence of the death penalty, then the two accused could review the appeal decisions.
‘It is our view that those convicted by the International Crimes Tribunal, like Delwar Hossain Sayedee can seek to review an appellate division judgment,’ said Imran Siddiq, one of the defence counsel for Abdul Quader Molla
‘But, until the court gives its judgment on Molla’s review, the law on this point remains unclear,’ he added.
If the appellate division accepted that the application by an international crimes convict was permitted, then this would also open up an opportunity for the prosecution to seek a review of the decision of the court to commute Sayedee’s death penalty.
Immediately, after the appellate division gave its order in the Sayedee case, the attorney general, Mahbubey Alam said, ‘There is no scope for filing such a petition as the trial was run under a special law.’
Molla’s review application came up before the appellate court bench on December 10, 2013 after a judge had ‘stayed’ his execution two days earlier, late in the evening, just hours before the jail authorities sought to hang him.
The planned execution followed the publication the previous month of the appellate division judgment which had ruled that Molla should be sentenced to death, rather than receive a life sentence, for his role in the murder of the family of Momena Begum in Mirpur in March 1971.
In ordinary circumstances, a person has a constitutional right in Bangladesh to seek a review of an appellate division judgment. Article 105 of the constitution gives the court the power ‘subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.’
However, the Attorney General argued before the appellate division that the terms of the International Crimes (Tribunal) Act 1973 did not allow for such an application, and that in any case the first amendment of the constitution precluded a person convicted under this legislation from enjoying this normal constitutional right.
On December12, the second day of argument , the chief justice, Justice Md Muzammel Hossain, asked the defence lawyers to stop making arguments in favour of the right to review, and instead set out why the judgment should be overturned.
The Chief Justice made this comment without making it clear whether the court was of the view that the court accepted that the accused had a right to seek a review.

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