Monday, August 23, 2010

Aug 22, Challenge to the First Amendment

On Sunday the High Court started to hear the writ petition challenging both the constitutionality of the Constitution (First Amendment) Act 1973 and the International Crimes (Tribunal) Act 1973 Act. I was present in court.

The first amendment Act amended Article 47 of the constitution. It has two key effects: (a) removing the protection of certain fundamental rights (right to protection from law, protection in respect of trial and punishment, and right to move the High court for the enforcement of fundamental rights) from a person detained/prosecuted/sentenced under the International Crimes (Tribunal) Act 1973: (b) prevents the Act itself from being challenged for being in violation of the constitution.

During the hearing there was a particularly interesting interjection made by Justice Wahab Miah in which he set out his view that he thought that the International Crimes (Tribunal) Act should be amended to allow a person detained/prosecuted under the Act to appeal to the Appellate Division of the Supreme Court during the proceedings itself.

Under the Act, at present, an appeal to the Appellate Division can only happen following conviction.

He said: "I have looked through each and every section and subsection of the Act and the Rules. My only comment is, there should be some provision for a person to go to the Appellate Division."

At the end of the day's hearing, the judge specifically asked attorney general Mahbubey Alam to deal with this issue when he addressed the court on Monday. In response, the Attorney General said he would be "able to satisfy the court on this point".

It is not entirely clear what the Judge meant by this: for what purpose could the person approach the appellate division?

Is it being suggested that an accused person under the 1973 Act could seek a remedy for an alleged breach of his fundamental rights?

If so, this would mean that a key aspect of the First Amendment would in effect have been revoked. Moreover, the very suggestion - if part of his final ruling - would presuppose that the courts can in fact assess the constitutionality of the 1973 Act.

We will have to wait to see how the Attorney General responds to this on Monday.

All of Sunday's morning hearing was taken up by arguments from Barrister Razzaq arguing for the two petitioners (Mohammad Quamruzzaman and Abdul Quader Mollah, the Jamaat leaders currently detained by the International Crimes Tribunal on allegations that they had committed crimes against humanity in the independence war of 1971).

His first set of arguments concerned the difference between the power of the constituent assembly, which combined legislature, judiciary and executive, and the situation after the constitution was agreed in which there was a clear division of powers between the three. He argued that the constituent assembly could do anything, but once the constitution was formed, the parliament could only amend the constitution to the extent that it did not break the basic structure of the constitution.

He then went on to discuss what 'basic structure' meant. He quoted from the "8th Amendment Case Judgment" to argue that Article 44 of the constitution (the right to move the supreme court for the enforcement of rights) was part of the basic structure. He referred to paras 254, 255 and 259 of the judgement, quoting a passage from Justice Chowdhury's judgment where he said that the 8th amendment was "invalid because it is inconsistent with Article 44 .... and 102 of the constitution."

Links Judge asks AG to consider 1973 Act change

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