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This rolling blog is now finished. And further developments in relation to the execution of Kamaruzzman will be discussed on new pages
Monday, 10 November 2014
11.55 pm: Govt backs down on execution without full judgement
I missed, perhaps the most important news of the day. New Age published a report in the paper this morning which stated that the Attorney General gave a press conference on Sunday in which he said that the government was likely now to wait until the publication of the Appellate Division's full judgement in Kamaruzzman's case before executing him. A similar story was published in the Daily Star.
In the press conference, it appears he first acknowledged that if the government was going to follow the Jail Code, the prison could not take any action without a 'warrant of execution' and this would first require a full appellate court judgement
Secondly, that the government would have to wait for the appellate division's judgement on Molla's rejected application to review in order to find out whether Kamaruzzman could seek a review application of his appeal judgment.
So where does that leave us now.
First, this is a big U-turn by the government, and by the Attorney General. It was only a few days ago that it seemed that the execution was going to be any day. And the government/AG rhetoric left little doubt about their intentions.
Secondly, I would speculate that the main reason for this change of events, was the differences of opinion within the appellate division (nothing unusual about that) concerning the right approach about issuing a short order or not. The government, I imagine had hoped that the court would be willing to issue a short order, but at least one judge was perhaps not in favour of that approach.
Thirdly, whatever was the reason behind the government decision, it is a good one. To have executed Molla before he had a chance to even see the reasons why the court had dismissed the appeal would have been simply wrong, yet alone before giving him a chance to review the decision (when there remains a chance that he has a right to seek a review). It also will have the effect of diluting the international criticism about the execution.
Fourthly, there is the issue of when the appellate division judgement will be issued. In the Molla case the short order was issued in mid September, and the full judgement at the end of November - a period of about 2.5 months. In this case, the judgement does not need to be anywhere near as long since many of the legal issues will have been dealt with in the Molla judgement. So whilst it could take as long as 2.5 months, it it is more likely to take less. A mid-December execution, around victory day is still possible - though it will depend on what the appellate division rules in its decision on Molla's review application.
5.10 pm: BREAKING NEWS: US government calls for halt to Kamaruzzaman execution
In a move that I would gauge will be far from popular amongst many/most in Bangladesh, the United States has called for a halt to the execution of the Jamaat-e-Islami leader Kamaruzzaman. It did so through a statement given by its Ambassador-at-large for Global Criminal Justice, Stephen Rapp a couple of hours ago.
The key part of Rapp's statement, given in a conference call to myself (as a New Age reporter) and a reporter from the biggest newspaper in Bangladesh, Prothom Alo, is as follows:
'As I said during my fifth visit to Bangladesh in August 2013, we have seen some progress, but still believe that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until these obligations can be shown to have been met, it is best not to proceed with executions given the irreversibility of a death sentence.'I have written a short article for New Age which includes further comments given by Ambassador Rapp, and will link to it when it comes up on the website. I will also provide further details about what he said later.
Sunday, 9 November 2014
1.30 pm: HRW calls for Halt of execution
Calling the international Crimes Tribunals, 'replete with fair trial concerns', Human rights watch has called for the execution of Kamaruzzaman to be halted. The full text is here.
It first calls on government to allow for a review of the full judgement:
"Kamaruzzaman and his counsel have yet to receive the full text of the final verdict, which is necessary for him to be able to lodge a petition for review of the decision within thirty days, a standard procedure in all death penalty cases. Government officials have indicated that the execution is possible before the full verdict is issued which goes against standard policy in death penalty cases."It then refers to its opposition to the death penalty in all circumstances, but states that such a sentence
“is particularly problematic when proceedings do not meet fair trial standards and where the right to appeal against a death sentence by an independent court is not allowed.”In relation to fair trial concerns, it states:
Human Rights Watch noted that trials before the ICT, including that of Kamaruzzaman, have been replete with fair trial concerns. In Kamaruzzaman’s case, defense evidence, including witnesses and documents, were arbitrarily limited. Inconsistent prior and subsequent statements of critical witnesses were rejected by the court, denying the defense a chance to challenge the credibility of prosecution witnesses. An application by the defence to recuse two judges for prior bias was summarily rejected.
This follows a disturbing precedent from other cases. In December 2013, Abdul Qader Mollah was hanged following hastily enacted retrospective legislation which is prohibited by international law. Another accused, Delwar Hossain Sayedee, was convicted in spite of credible allegations of the abduction by state forces of a key defence witness with the ICT refusing to order an independent investigation into the charge. Many of the trials have been marred by the evidence of intercepted communications between the prosecution and the judges which reveal prohibited contact. The ICT’s response on several occasions to those who raise objections about the trials has been to file contempt charges against them in an apparent attempt to silence criticism rather than answer substantively or indeed, to rectify any errors.The human rights organisation also criticises Article 47A of the constitution that precludes those accused of war crimes of claiming their fundamental rights.
Article 47A (1) of the constitution specifically strips war crimes accused of their right to certain fundamental rights, including the right to an expeditious trial by an independent and impartial court or tribunal, and the right to move the courts to enforce their fundamental rights. This pernicious amendment to the constitution allows the ICT overly broad discretion to deny these accused the rights and procedures accorded to other criminal accused.It concludes by saying:
“Human Rights Watch has long supported justice and accountability for the horrific crimes that occurred in 1971, but we have also stated repeatedly that these trials must meet international fair trial standards in order to properly deliver on those promises for the victims. .... Delivering justice requires adhering to the highest standards, particularly when a life is at stake. The death penalty is irreversible and cruel, and Bangladesh needs to get rid of it once and for all.”
Saturday, 8 November 2014
12.20 pm: Lord Carlile's letter to the Bangaldesh High Commissioner
Lord Carlile of Berriew CBE QC yesterday issued a letter which he sent to the Bangladesh High Commissioner in London. It is set out below (with the removal of one word). See my comments below.
I write to you to express my grave concern regarding recent developments in Bangladesh. The Bangladesh International Crimes Tribunal (ICT) has passed three verdicts over recent days. Two senior Jamaat leaders have been sentenced to death, and the Assistant Secretary-General of Jamaat has had his conviction and death sentence confirmed by the appellate division of the Supreme Court.I have the following comments on this letter.
All of these verdicts follow what can only be described as being a .... flawed trial process. In terms of Mr. Kamaruzzaman, the Government of Bangladesh and specifically the Attorney-General Mr Mahbubey Alam have noted that his execution was only “a matter of time”.
The authorities appear ready to ignore established domestic law which clearly states that Kamaruzzaman has the right to request that the sentence be ‘reviewed’ and further, the right to petition for clemency.
Any steps being taken to carry out the sentence must immediately halted as the judicial process has not been exhausted. Failure to do so, and failure to allow Kamaruzzaman to exercise his rights will result in the sentence being nothing more than an instance of extra-judicial killing.
There has been great concern expressed over the conduct of the trials and appeal process. A number of international legal and human rights experts have expressed concern over the standards applied and in particular the curtailment of human rights and fundamental rights. The UN Office of the High Commissioner has repeatedly called for the Bangladesh authorities to bring its procedures in line with its international obligations. It has repeatedly failed to do so.
Throughout proceedings the Tribunal has placed limits on the conduct of the defence case. It has restricted the number of defence exhibits, preparation time and the number of defence witnesses.
Bangladesh politics has an unfortunate history of cyclical acts of retribution against previous administrations. Yet this Tribunal may herald a far worse outcome. The country’s political landscape risks being polarised and poisoned for a generation.
Reconciliation will be only be served by:
‐ The immediate commencement of a reconstituted, internationally sanctioned and supervised war crimes tribunal;
‐ A moratorium on all executions handed down by the Tribunal;
‐ A fully independent inquiry into the existing judgments given by the ICT;
‐ A halt to all current trials until the above measures are implemented;
If Bangladesh continues its current trajectory, another political tinderbox may be lit in this already troubled region. Only through international pressure to reconstitute this Tribunal, adhering to internationally accepted norms of human rights and fairness, can Bangladeshis truly reconcile with the past and move forwards as a nation.
I appeal to the judiciary, and the Government of Bangladesh to observe the obligations imposed by national and international law and grants Kamaruzzaman his right of review. I would further appeal to the President to immediately commute all death sentences which are opposed on principle.
- Lord Carlile is not quite right to say that 'The authorities appear ready to ignore established domestic law which clearly states that Kamaruzzaman has the right to request that the sentence be ‘reviewed’ and further, the right to petition for clemency'. There is a legal argument, which was put forward by the Attorney General in the Molla review application, that those accused of crimes under the International Crimes (Tribunal) Act 1973 do not have a right to review, and until the appellate division issues its ruling on this matter, the law on this remains unclear.
- whilst clearly the supporters of Jammat are very concerned about the executions, the truth of the matter is that it remains unclear whether many others in Bangladesh are. So to say that 'The country’s political landscape risks being polarised and poisoned for a generation' or that 'another political tinderbox may be lit in this already troubled region' is I think not an accurate representation of what will happen in Bangladesh. Understandably, looking from the UK, Lord Carlile might think that this is a reasonable supposition - however from Bangladesh, it appears inaccurate. That is not to say that any execution will have no impact upon future politics in the country - I am sure it will inform it in many years to come. Arguably, the failure to execute arguably could arguably create more polarization than not doing so.
(A caveat: I should add here of course that it is very difficult to know what people are really thinking on this matter, as journalists/commentators who may have alternative views are certainly scared of speaking plainly on this issue for fear of the repercussions and in particular being branded 'pro-Jamaati/pro-war criminal'.)
(A caveat: I should add here of course that it is very difficult to know what people are really thinking on this matter, as journalists/commentators who may have alternative views are certainly scared of speaking plainly on this issue for fear of the repercussions and in particular being branded 'pro-Jamaati/pro-war criminal'.)
- he talks about 'reconciliation' - but no-one in Bangladesh, at least I mean no-one I have spoken to, has ever used that word. And indeed why should it be? These were serious crimes committed in 1971, and leaders of the party or the student wing at that time, obviously have cases to answer for their role at that time. Also, the Jamaat has never in any way apologized or otherwise accepted fault for its role at that time. So why should there be reconciliation, without accountability?
- other than the supporters of the Jamaat, there are very few people in Bangladesh - including those who would normally be concerned about issue of fair trial etc - who are willing to say publicly they are concerned about due process and the trials. So, it is simply pie in the sky for Lord Carlile (however legitimate his concerns may be about the process) to seek a new internationally sanctioned process, as he does.
- he then goes onto say: 'Only through international pressure to reconstitute this Tribunal, adhering to internationally accepted norms of human rights and fairness, can Bangladeshis truly reconcile with the past and move forwards as a nation.' This may sound right in theory, but the reality here seems to be very different indeed. And whilst I do not agree with this view point, some people might reasonably assert, considering the political environment here, and the long years of impunity, that only through executions can Bangladesh reconcile with its past. There are other good reasons why executions should not take place - but arguing on the basis of reconciliation is not the way.
12.15 pm: No developments, awaiting appellate division
There have been no significant developments. However, it is being suggested that tomorrow (sunday) or soon after, the Appellate Division will be issuing its decision in the review application of Molla. If the court decided that Molla's application was maintainable (having been dismissed on merits), then Kamaruzzman would also be entitled to seek to review of the appellate division judgement and cannot be executed before the full judgement is published, as it is this judgment which will be subject to reviewed: see below, Thursday, 6pm). However, if the court decides that Molla's application was not maintainable, then Kamaruzzman could possiblty be executed sooner.
Friday, 7 November 2014
1.00 pm: United Nation's raporteurs call for stay of execution - suggest's impending death sentence is 'tantamount to an arbitrary execution'
This statement was released yesterday by two United Nation's special rapporteurs. (The United Nations High Commissioner of Human Rights is the secretariat for special rapporteur mandate holders, which is why the statement is on its letter head. The statement is not issued by the Office itself.)*. It is notable of course that Bangladesh has recently been re-elected to the UN Human Rights Council, and that this statement therefore may have a bit more leverage on the government than earlier statements about the Tribunal. However, I think we can assume it will continue to have no proper purchase on the Bangladesh government, given the politics of the issue.
This, I think, is the key part of the release
- The special rapporteur on 'Summary executions, which the present and past governments have refused to allow into the country despite requests for invitation.
- And the special reporteur on the 'Independence of judges and lawyers' - two previous requests from this person to come to Bangladesh have also proved unsuccessful.
* This has been edited to make the provenance of the letter clear
Thursday, 6 November 2014
6.00pm: More on the short order ... appellate division sitting
The options around the short order, discussed a lot below (1.15 pm and 12.30 pm today: 10pm yesterday), is becoming a bit more complex.
The first issue is whether a short order needs to be signed by all the judges or whether a majority of the judges would be sufficient.
Different lawyers, speaking off the record, have given this blog different views. However, one lawyer, close to the government told this blog that in his view in relation to any case and any order, the signature of all the judges present when an order is given in court must be on the order for it to be effective. Judges may be reluctant to sign a short order because they are of the view that the accused has a right to seek a review of the written judgement (see third issue below).
The second issue is that this same lawyer suggested that in his personal view a short order might not even be necessary, and that a notice from the registrar quoting the text of the order might be sufficient. However, it is unclear whether there is any precedent for this, and in relation to the final order of execution from the appellate division (after the dismissal of the review application) this was an order signed by all the judges, not a notice from the registrar. It would seem to be unlikely that the government would go down this route - or indeed that the court would allow it.
Third, there is the issue of whether or not the government is duty bound to wait for the written judgement as the issue of whether or not Kamruzzman has a right to review the full written judgement against him is not known - because the court has not issued its judgment on this mater relating to the Molla case.
This same lawyer, close to the government, said that he accepted that this was an issue that the government needs to take into account - since if they were to execute Kamaruzzman before a decision on whether he had a right to seek a review or not is decided, a remedy of his might have been unlawfully removed from him.
However this lawyer said that this particular matter could be resolved if the appellate division issued their ruling on this. If there was a clear ruling that ICT accused had no right to a review of the appellate division decision, then the judges that might have been reluctant to sign the short order, would not be be so reluctant as the law on that point had been decided.
And in relation to that, it is being said that the appellate division have been sitting in session, possibly working on an order, which could well be the one relating to the Molla review application or indeed on the Kamaruzzman matter directly.
2.20 pm: Toby Cadman's statement
Toby Cadman is the UK based defence lawyer and international lobbyist for Kamaruzzman. It would therefore be expected that he would issue a statement severely criticising the decision of the appellate division and this is what he has done (though of course that does not mean he may not have justifiable cause of complaint). The statement contains some very strong language, and would have to be edited to avoid allegations of contempt of court. The statement begins by stating:
2.00 pm Lord Avebury's statement
Lord Avebury, a human rights activist in the House of Lords in the UK, and a longtime watcher of Bangladesh has written on his website inter alia that
The government's plans to execute Kamaruzzman on the basis of the short order - however in order to do do it must have a copy of an order of the court, which is signed by all four of the judges including the one that dissented.
It would appear that since the government does not have a copy of the short order yet, the dissenting judge is perhaps reluctant to sign a short order, though perhaps he is under some pressure to do so from his colleagues.
In the Molla case, there was apparently a similar situation - and so the government had to wait for a full judgement.
1.00pm: Defence lawyers meet their client
The defence lawyers have gone to meet their client Kamaruzzman who has instructed them to file a review application, following the publication of the full judgement (though the government is saying that they can exeucte without a full judgement being given). New Age reports that:
What remains unclear is why the government wants to push ahead with the execution now on the basis of a short order, which even giving the government the benefit of the doubt, remains at the very edge of lawfulness - in that (a) an execution has never been done before on the basis of a short order of the appellate division (b) the appellate division has not yet ruled on whether an accused war crimes convict has a legal right to seek a review of an appellate division decision (if there is a right then the government would have to wait for the publication of the full judgment).
(Of course, the second issue could be dealt with if the appellate division were in the next few days to give its judgement in the Quader Molla review application case)
What is the government's rush? What is the political benefit? Whilst in the Molla case in December 2013, there was from the Awami League's position a political imperative to execute him - in that it remained unclear, at that time, how much longer the Awami League government would remain in power and it was quite possible that they could be ousted. Here that is not the situation. The government is secure. Perhaps, it is the sense that the government need's the execution before December 16th, the country's victory day - key dates have mattered at various times in this trial process. Or perhaps they want to show that there can be no doubt of their intention to follow through with the executions.
Wednesday, 5 November 2014
10.00 pm: Possible timing of execution
The government appears to accept that Kamaruzzman has a right to seek a pardon from the President, and has a week to do this, which runs from the date of the judgement on 3 November 2013. This therefore would appear to give until the 10th November. However, some rumours suggest that the government is seeking to execute, earlier, on Saturday.
10.00 pm: Short order and more
It remains unclear whether the government yet has a copy of the short order, which seems to be the very minimum necessary to allow for an execution (though arguably a full written judgement is necessary - see discussion at 8:00pm) - though the law minister appeared to suggest in his press conference that he did have a copy.
The defence lawyers tell me that they have sought an application for a copy of 'the order' of the court, and they say that they have not received a copy which they would expect to have if one had been issued. I cant get through to any of the senior lawyers in the Attorney General's office
In relation to the issue of review, the Law Minister appears to interpret the appellate division's decision to 'dismiss' the review application of Molla in December 2013, as a decision of the court against the right of the review, and not a dismissal of the merit of the arguments. It is not clear what is his basis for that since the court has not issued its written judgement.
9.30 pm: Human Rights organizations criticise death penalty decision
The International Commission of Jurists and Amnesty International have condemend the death penalty decisions, both in statements a couple of days ago.
The International Commission of Jurists stated in its 3 November statement:
I have already set out the argument of the tribunal setting out why it considered Kamaruzzaman should be found guilty of the offence for which he is facing the death penalty (see 8.25 pm, below). I am setting out here an extract from the written defence appeal application to the appellate division as to why he should be acquitted from this charge. There may have been more in oral argument, but this is what is set out in their written argument specifically about charge no-3
One of my colleagues at the New Age office has told me that he had heard the IG of Prisons went to meet the law minister this morning, and then they both went to meet the prime minister, Sheikh Hasina. The law minister then informed journalists about a briefing at 6pm
8.40pm: The difference with the Molla execution
It is interesting to note the differences between the way the court and the government dealt with/are dealing with the Molla and the Kamaruzzman executions.
In Molla, the short order ruling that Molla should be executed was given in September 2013. Talk of his execution did not take place until the court published its full judgement in late November 2013. Molla was going to be executed on 10th December 2013, but the defence lawyers were able to get a last minute stay allowing for a arguments over a review application, which was dismissed on the 12th December and he was executed later that night.
In Kamaruzzaman's case the government is not waiting for the full written judgement.
I have heard, thought this is not confirmed, that the government was hoping in the Molla case to execute him on the basis of a short order, but the dissenting appellate division judge was not willing to sign a short order. One assumes in this case the dissenting judge has agreed to sign the short order.
8.15 pm: the offence for which he has been sentenced to death
If you want to read about the offence for which he has been sentenced to death (the one death penalty conviction that was upheld by the appellate division) and how the tribunal argued that he was guilty, see here. The summary of the offence is as follows:
A key question is whether in law it is possible for a person to be executed on the basis of a short order. A number of points can be made about this:
(a) it is unusual for the appellate division to even give short orders. Whilst it is true that the court has done so in the past, it is almost always on the basis of what one lawyer said was 'an emergency' legal situation.
(b) as far as the lawyers I have spoken to say, no person has never been executed on the basis of a short order of the appellate division.
(c) the appellate division has not yet published its order relating to the application in December 2013 by Abdul Quader Molla seeking a review of the appellate division's order seeking his execution, which I wrote about in New Age today. As a result it is not known whether the appellate division is of the view that there is a right to review. Executing Kamaruzzaman now, without knowing whether he has the right to seek a review against a written reasoned long judgement seems to be very premature to say the least.
(d) As one independent lawyer put it to me: Kamruzzman is a applicant before the court, and the court has ruled against him. He should at the very least be entitled to see a copy of a reasoned decision as to why the court has ruled against him - an expectation that is all the greater since there is a penalty of execution against him.
7.40 pm: Defence lawyers seek meeting with Kamaruzzman
The defence lawyer, Advocate Md Shishir Monir, has sent a letter to a the senior Jail Superintendant at Dhaka Jail asking to meet Kamaruzzman. According to a copy sent around to journalist, it states (a rough translation):
It is now being reported that the jail authorities have been ordered to prepare for the execution of Kamaruzzaman whose sentence of execution was upheld earlier this week by the appellate division.
The Dhaka Tribune is reporting that the Law Minister Anisul Haq stated at a press briefing in the last hour that
This raises the question of whether an accused can be the basis of execution on the basis of a short order which I will discuss shortly
12.15 pm: No developments, awaiting appellate division
There have been no significant developments. However, it is being suggested that tomorrow (sunday) or soon after, the Appellate Division will be issuing its decision in the review application of Molla. If the court decided that Molla's application was maintainable (having been dismissed on merits), then Kamaruzzman would also be entitled to seek to review of the appellate division judgement and cannot be executed before the full judgement is published, as it is this judgment which will be subject to reviewed: see below, Thursday, 6pm). However, if the court decides that Molla's application was not maintainable, then Kamaruzzman could possiblty be executed sooner.
Friday, 7 November 2014
1.00 pm: United Nation's raporteurs call for stay of execution - suggest's impending death sentence is 'tantamount to an arbitrary execution'
This statement was released yesterday by two United Nation's special rapporteurs. (The United Nations High Commissioner of Human Rights is the secretariat for special rapporteur mandate holders, which is why the statement is on its letter head. The statement is not issued by the Office itself.)*. It is notable of course that Bangladesh has recently been re-elected to the UN Human Rights Council, and that this statement therefore may have a bit more leverage on the government than earlier statements about the Tribunal. However, I think we can assume it will continue to have no proper purchase on the Bangladesh government, given the politics of the issue.
This, I think, is the key part of the release
The UN human rights experts have on several occasions expressed alarm regarding serious violations of fair trial and due process guarantees in the judicial proceedings before the Tribunal that were reported to them.The comments are made by the two special rapporteurs - which this and previous Bangladesh governments have studiously avoided and prevented from coming to the country.
“In countries that have not abolished the death penalty, capital punishment may be imposed only following a trial that complied with the most stringent guarantees of fair trial and due process,” the experts noted. “Any death sentence executed in contravention of a Government’s international obligations is tantamount to an arbitrary execution.”
- The special rapporteur on 'Summary executions, which the present and past governments have refused to allow into the country despite requests for invitation.
- And the special reporteur on the 'Independence of judges and lawyers' - two previous requests from this person to come to Bangladesh have also proved unsuccessful.
* This has been edited to make the provenance of the letter clear
Thursday, 6 November 2014
6.00pm: More on the short order ... appellate division sitting
The options around the short order, discussed a lot below (1.15 pm and 12.30 pm today: 10pm yesterday), is becoming a bit more complex.
The first issue is whether a short order needs to be signed by all the judges or whether a majority of the judges would be sufficient.
Different lawyers, speaking off the record, have given this blog different views. However, one lawyer, close to the government told this blog that in his view in relation to any case and any order, the signature of all the judges present when an order is given in court must be on the order for it to be effective. Judges may be reluctant to sign a short order because they are of the view that the accused has a right to seek a review of the written judgement (see third issue below).
The second issue is that this same lawyer suggested that in his personal view a short order might not even be necessary, and that a notice from the registrar quoting the text of the order might be sufficient. However, it is unclear whether there is any precedent for this, and in relation to the final order of execution from the appellate division (after the dismissal of the review application) this was an order signed by all the judges, not a notice from the registrar. It would seem to be unlikely that the government would go down this route - or indeed that the court would allow it.
Third, there is the issue of whether or not the government is duty bound to wait for the written judgement as the issue of whether or not Kamruzzman has a right to review the full written judgement against him is not known - because the court has not issued its judgment on this mater relating to the Molla case.
This same lawyer, close to the government, said that he accepted that this was an issue that the government needs to take into account - since if they were to execute Kamaruzzman before a decision on whether he had a right to seek a review or not is decided, a remedy of his might have been unlawfully removed from him.
However this lawyer said that this particular matter could be resolved if the appellate division issued their ruling on this. If there was a clear ruling that ICT accused had no right to a review of the appellate division decision, then the judges that might have been reluctant to sign the short order, would not be be so reluctant as the law on that point had been decided.
And in relation to that, it is being said that the appellate division have been sitting in session, possibly working on an order, which could well be the one relating to the Molla review application or indeed on the Kamaruzzman matter directly.
2.20 pm: Toby Cadman's statement
Toby Cadman is the UK based defence lawyer and international lobbyist for Kamaruzzman. It would therefore be expected that he would issue a statement severely criticising the decision of the appellate division and this is what he has done (though of course that does not mean he may not have justifiable cause of complaint). The statement contains some very strong language, and would have to be edited to avoid allegations of contempt of court. The statement begins by stating:
International Defence Team demand an immediate and unconditional stay of proceedings and suspension of sentence in light of serious prosecutorial .... misconduct indicating an unlawful collusion between members of the Government of Bangladesh and elements of the Prosecution ... to “fix and manipulate” the trial.' (edited from the original)For those who want to read the full statement, see here. Do note that the Tribunal, the Appellate Decision and the Government would deny all the claims made in this statement. I am providing a link to ensure all sides of the argument are available, and not because I necessarily agree with it's content
2.00 pm Lord Avebury's statement
Lord Avebury, a human rights activist in the House of Lords in the UK, and a longtime watcher of Bangladesh has written on his website inter alia that
The Attorney-General Mr Mahbubey Alam said today that Mr Kamaruzzaman’s execution was only “a matter of time”, but the judicial process has yet to be exhausted. To complete it, the following legal steps should be followed:1.15pm: Where is the short order?
i. The judges of the Supreme Court are required to write a full judgment giving the reasons why they have affirmed the death sentence
ii. After receiving the official copy of the judgment the accused has a
right to file a Review Petition within a period of 30 days under Article 105 of the Constitution .
iii. The accused then has the right to seek mercy from the President within 7 day ....
I appeal to the legal authorities to observe the law and grant Mr Kamaruzzaman his full rights, and I urge the President to commute all the death sentences, which we oppose on principle.
The government's plans to execute Kamaruzzman on the basis of the short order - however in order to do do it must have a copy of an order of the court, which is signed by all four of the judges including the one that dissented.
It would appear that since the government does not have a copy of the short order yet, the dissenting judge is perhaps reluctant to sign a short order, though perhaps he is under some pressure to do so from his colleagues.
In the Molla case, there was apparently a similar situation - and so the government had to wait for a full judgement.
1.00pm: Defence lawyers meet their client
The defence lawyers have gone to meet their client Kamaruzzman who has instructed them to file a review application, following the publication of the full judgement (though the government is saying that they can exeucte without a full judgement being given). New Age reports that:
‘Our client has expressed his willingness to file a review petition within 30 days after obtaining the full verdict of the Appellate Division,’ said Shishir Monir, one of the defence lawyers. ....Earlier, before entering in to the jail, Shishir said that it was Kamaruzzaman’s constitutional rights to file a review petition to the AD of the Supreme Court. ‘It (filing review petition) is his constitutional right. It is here, it was here and it will be here in the future,’ said Shishir. He criticized the Attorney General and the Law Minister who believe war crimes convict Kamaruzzaman is not entitled to rights of filing review petition to the Appellate Division of the Supreme Court. ‘The statements of the Attorney General and the Law Minister are unlawful.’12.30 pm: The edge of legality?
What remains unclear is why the government wants to push ahead with the execution now on the basis of a short order, which even giving the government the benefit of the doubt, remains at the very edge of lawfulness - in that (a) an execution has never been done before on the basis of a short order of the appellate division (b) the appellate division has not yet ruled on whether an accused war crimes convict has a legal right to seek a review of an appellate division decision (if there is a right then the government would have to wait for the publication of the full judgment).
(Of course, the second issue could be dealt with if the appellate division were in the next few days to give its judgement in the Quader Molla review application case)
What is the government's rush? What is the political benefit? Whilst in the Molla case in December 2013, there was from the Awami League's position a political imperative to execute him - in that it remained unclear, at that time, how much longer the Awami League government would remain in power and it was quite possible that they could be ousted. Here that is not the situation. The government is secure. Perhaps, it is the sense that the government need's the execution before December 16th, the country's victory day - key dates have mattered at various times in this trial process. Or perhaps they want to show that there can be no doubt of their intention to follow through with the executions.
Wednesday, 5 November 2014
10.00 pm: Possible timing of execution
The government appears to accept that Kamaruzzman has a right to seek a pardon from the President, and has a week to do this, which runs from the date of the judgement on 3 November 2013. This therefore would appear to give until the 10th November. However, some rumours suggest that the government is seeking to execute, earlier, on Saturday.
10.00 pm: Short order and more
It remains unclear whether the government yet has a copy of the short order, which seems to be the very minimum necessary to allow for an execution (though arguably a full written judgement is necessary - see discussion at 8:00pm) - though the law minister appeared to suggest in his press conference that he did have a copy.
The defence lawyers tell me that they have sought an application for a copy of 'the order' of the court, and they say that they have not received a copy which they would expect to have if one had been issued. I cant get through to any of the senior lawyers in the Attorney General's office
In relation to the issue of review, the Law Minister appears to interpret the appellate division's decision to 'dismiss' the review application of Molla in December 2013, as a decision of the court against the right of the review, and not a dismissal of the merit of the arguments. It is not clear what is his basis for that since the court has not issued its written judgement.
9.30 pm: Human Rights organizations criticise death penalty decision
The International Commission of Jurists and Amnesty International have condemend the death penalty decisions, both in statements a couple of days ago.
The International Commission of Jurists stated in its 3 November statement:
“It is unfortunate that Bangladeshi courts continue to hand down one death sentence after the other,” said Sam Zarifi, ICJ’s Director for Asia and the Pacific. “While it is essential that those responsible for committing atrocities during the Bangladeshi war of liberation are prosecuted and brought to justice in fair trials, the death penalty perpetuates the cycle of violence and is a perversion of justice.”Amnesty International stated in its most recent statement:
Bangladesh must immediately impose a moratorium on executions as a first step towards abolition of the death penalty and ensure that political interference does not mar judicial processes, Amnesty International said after the confirmation of two fresh death sentences over two days.
Bangladesh’s Supreme Court today upheld the death sentence against Mohammad Kamaruzzaman, a senior leader of the opposition Jamaat-e-Islami party. Kamaruzzaman was first sentenced to death in May 2013, on charges of involvement in killings, by the International Crimes Tribunal (ICT), a Bangladeshi court examining the events of the country’s 1971 Independence War.
“The relentless push to impose death sentences in Bangladesh is deeply worrying. After a hiatus of nine months since the last death sentence was announced, three more men have now been sentenced to the gallows in the space of less than a week,” said Abbas Faiz, Amnesty International’s Bangladesh Researcher.
“Far from bringing justice to the millions of victims of the Independence War and their family members, executions will only perpetuate a cycle of violence.”9.15 pm: The defence argument on charge no.3 at the appellate division.
I have already set out the argument of the tribunal setting out why it considered Kamaruzzaman should be found guilty of the offence for which he is facing the death penalty (see 8.25 pm, below). I am setting out here an extract from the written defence appeal application to the appellate division as to why he should be acquitted from this charge. There may have been more in oral argument, but this is what is set out in their written argument specifically about charge no-3
50. That the ICT-2 committed error of law and fact in failing to consider that although charge was framed against the appellant that he had advised the massacre at Shohagpur (Charge No.3) no evidence was led as to what advice was given and when such advice was given. Moreover, the PW2 did not make any statement as to Shohagpur Massacre (i.e. Charge No.3) to the Investigating Officer (“IO”) and that the PW10 did not mention the appellant’s name to the IO, making their deposition on this Charge unreliable. Further since no charge was framed in relation to rape as a crime against humanity, the finding of complicity in rape was unlawful.8.50 pm: Earlier in the day
51. That moreover the ICT-2 committed error of law and fact in failing to consider that according to the deposition of the PWs there were 3 possible dates of the event of Charge No.3 none of which accorded with the Charge Framing Order.
52. That the ICT-2 committed error of law and fact in holding the appellant conspired in charge No.3 on the basis of the sole statement of PW11 that the appellant conspired although she could not state where and how he conspired by holding that such conspiracy ‘is hidden in the reply’ and that the PW11 is an illiterate person. Moreover, the ICT-2 ought to have considered that although the PW12 gave evidence that the PW13 was raped on the same day as the event of charge No.3, PW13 stated it was 6 days after the event and as such the conviction and sentence in ICT BD Case No. 3 of 2012 passed by the International Crimes Tribunal-2 (“ICT-2”) was unsafe.
53. That the ICT-2 failed to consider the intra and inter contradiction of all the PWs, thereby making the conviction unsafe.
One of my colleagues at the New Age office has told me that he had heard the IG of Prisons went to meet the law minister this morning, and then they both went to meet the prime minister, Sheikh Hasina. The law minister then informed journalists about a briefing at 6pm
8.40pm: The difference with the Molla execution
It is interesting to note the differences between the way the court and the government dealt with/are dealing with the Molla and the Kamaruzzman executions.
In Molla, the short order ruling that Molla should be executed was given in September 2013. Talk of his execution did not take place until the court published its full judgement in late November 2013. Molla was going to be executed on 10th December 2013, but the defence lawyers were able to get a last minute stay allowing for a arguments over a review application, which was dismissed on the 12th December and he was executed later that night.
In Kamaruzzaman's case the government is not waiting for the full written judgement.
I have heard, thought this is not confirmed, that the government was hoping in the Molla case to execute him on the basis of a short order, but the dissenting appellate division judge was not willing to sign a short order. One assumes in this case the dissenting judge has agreed to sign the short order.
8.15 pm: the offence for which he has been sentenced to death
If you want to read about the offence for which he has been sentenced to death (the one death penalty conviction that was upheld by the appellate division) and how the tribunal argued that he was guilty, see here. The summary of the offence is as follows:
During the period of War of Liberation, on 25.7.1971 in the early morning, accused Muhammad Kamaruzzaman being chief organiser of Al-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals advised your accomplices belonging to Al- Badar and Razaker Bahini who accompanied the Pak army in contemplating and taking steps towards commission of large scale massacre, to raid the village Sohagpur and accordingly they launched planned attack and murdered about 120 unarmed civilians including the 44 victims as named in the paragraph 8.7 of the Formal Charge and committed rape upon women of the said village and thereby Muhammad Kamaruzzaman has been charged for participating, substantially facilitating and contributing to the commission of offences of ‘murder as crime against humanity’ or in the alternative for ‘complicity to commit such crime’8.00 pm: Legal issues of executing on basis of short order
A key question is whether in law it is possible for a person to be executed on the basis of a short order. A number of points can be made about this:
(a) it is unusual for the appellate division to even give short orders. Whilst it is true that the court has done so in the past, it is almost always on the basis of what one lawyer said was 'an emergency' legal situation.
(b) as far as the lawyers I have spoken to say, no person has never been executed on the basis of a short order of the appellate division.
(c) the appellate division has not yet published its order relating to the application in December 2013 by Abdul Quader Molla seeking a review of the appellate division's order seeking his execution, which I wrote about in New Age today. As a result it is not known whether the appellate division is of the view that there is a right to review. Executing Kamaruzzaman now, without knowing whether he has the right to seek a review against a written reasoned long judgement seems to be very premature to say the least.
(d) As one independent lawyer put it to me: Kamruzzman is a applicant before the court, and the court has ruled against him. He should at the very least be entitled to see a copy of a reasoned decision as to why the court has ruled against him - an expectation that is all the greater since there is a penalty of execution against him.
7.40 pm: Defence lawyers seek meeting with Kamaruzzman
The defence lawyer, Advocate Md Shishir Monir, has sent a letter to a the senior Jail Superintendant at Dhaka Jail asking to meet Kamaruzzman. According to a copy sent around to journalist, it states (a rough translation):
"Our client, Md Kamruzzaman, ICT BD case no 03/2012 is in jail. Appellate division has given it appeal verdict in that case on 3 November. We want to meet with our client on 6 November to obtain his direction about the appeal verdict.6.50 pm: Government seeking early execution
So I am attracting your notice to take necessary steps to arrange a visit in a seperate room for important direction regarding the case.'
It is now being reported that the jail authorities have been ordered to prepare for the execution of Kamaruzzaman whose sentence of execution was upheld earlier this week by the appellate division.
The Dhaka Tribune is reporting that the Law Minister Anisul Haq stated at a press briefing in the last hour that
“As per the jail code, I have asked the jail authorities to take all necessary and relevant preparations to execute Jamaat-e-Islami leader Kamaruzzaman. As we have the apex court order, there is no bar to execute him before getting the copy of the full verdict.”
“As
per the jail code, I have asked the jail authorities to take all
necessary and relevant preparations to execute Jamaat-e-Islami leader
Kamaruzzaman. As we have the apex court order, there is no bar to
execute him before getting the copy of the full verdict.” - See more at:
http://www.dhakatribune.com/law-rights/2014/nov/05/kamaruzzamans-execution-preparation-ordered#sthash.YYLP97Pz.dpuf
“As
per the jail code, I have asked the jail authorities to take all
necessary and relevant preparations to execute Jamaat-e-Islami leader
Kamaruzzaman. As we have the apex court order, there is no bar to
execute him before getting the copy of the full verdict.” - See more at:
http://www.dhakatribune.com/law-rights/2014/nov/05/kamaruzzamans-execution-preparation-ordered#sthash.YYLP97Pz.dpu
This suggests that the government has a copy of what is known as the 'short order' of the judgement. One of the accused's defence lawyers however told me that they were informed by court officials that at 4pm no short order had been published, so one assumes that the short order has been given in the last few hours.This raises the question of whether an accused can be the basis of execution on the basis of a short order which I will discuss shortly
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