Monday, March 19, 2012

22 Feb 2012: Chowdhury frame charging

After the end of the hearing relating to Gholam Azam's frame charge application, the tribunal then heard a continuation of the arguments against the framing of charges against Salauddin Quader Chowdhury. This previous hearing on this issue was on 23 January

Defence counsel Mr. Fakhrul Islam came to the dais and submitted that the Collaborators Act-1972 was repealed by the 5th amendment and in 2011 5th amendment was challenged and repealed by 15th amendment. Therefore, Collaborators Act-1972 has now come back as part of our constitution.

Defence counsel Ahsanul Huq Hena then got up to say that there are a total of 6 cases against Chowdhury, among them 3 are pending before the collaborators Act 1972, and 3 are pending before the Penal code 1860.

He said that offences under the collaborators Act 1972 and International crimes Act 1973 were not the same. My lord, offence under collaborators Act can not come under the ICT Act 1973, and the ICT has no authority to transfer a collaborators Act case to it.

He said that killing of one person cannot be considered as Genocide.

He said that when cognizance has been taken under section 4 of the collaborators Act then it cannot be transferred to any other Act as the case is pending.

He said that there are total 25 charges against the accused among them 6 are already pending. If these 6 cases are not discharged from this formal charge then it will be considered as violation of Article 35(2) of the constitution.

Morning session finished.

After lunch, defence counsel Ahsanul Haq Hena went to the dais and continued his submission in respect of charge hearing matter:

“I have mentioned 6 cases under the Collaborator’s Act where the parties are exactly the same. Now my submission is these cases should be excluded from the formal charge.”

Tribunal Chairman Justice Nizamul Huq said: “On 2 grounds – (i) parties are same, and (ii) those cases are pending under the Collaborators Act, right?”

Ahsanul Haq Hena: “Yes, my lord. I do not want to submit further on this matter.”

Justice Nizamul Huq: “What about the other matter (discharge petition on behalf of the accused which is being heard by the Tribunal simultaneously)?”

The new defence counsel Fokhrul Islam came to the dais to make his submission in respect of the discharge petition which in the following way
“My lord, at page 2 paragraph 1 of our submission, your lordship will find that a gazette (copy the gazette attached at page 41) was published by the Pakistan government mentioning the names of the elected members of the National Assembly (MNAs) in 1970. Bangabondhu Sheikh Muzib was elected from 2 seats - Dhaka 8 and Dhaka 9. At page 44 your lordship will find that Mr Khaled was elected from the seat where accused petitioner’s father was defeated.”
Justice Zaheer interrupted and asked him, “Do you want to say that he (accused petitioner’s father) did not have good terms with Yahya Khan?”

Fokhrul Islam replied, “You are absolutely right my lord.” Then he continued his submission:
“At page 49, your lordship will find a list of the seats declared vacated under section 11 of the Pakistan National and Provincial Election Act read with article 7 of the Legal Framework Order 1970 and section 96 of the same (Pakistan National and Provincial Election) Act. If your lordship carefully examines it, neither Sheikh Mujib seats nor Mr. Khaled seat was declared vacant. If accused petitioner’s father had good terms with the President then Mr. Khaled’s seat would have been declared vacant and accused petitioner’s father would get chance to be MNA from that seat.”
Tribunal Chairman Justice Nizamul Huq argued, “What do you mean? Sheikh Muzib had also good terms with Yahya! He was no way Yahya’s friend. May be Sheikh Muzib and Mr Khaled did not fall under the grounds of declaring their seat as vacant.”

Defence counsel Forkhrul Islam replied, “We shall see that my lord.” Then he continued his submission:
“I am reading out from page 3, paragraph 3. The bank account of the Conventional Muslim League was seized (accused petitioner’s father was the top leader of that Conventional Muslim League. Tribunal members were bit confused about the division of Muslim League in East Pakistan.
Accused petitioner Salauddin Quader Chowdhury then explained that in the parties named Muslim League there were differences in ideology and not all of those Mulsim Leaguers had good terms with the government). The lawyer continued:
Your lordship will find the gazette ordering the same at page 57. (He read out the gazette then)”
Tribunal Member AKM Zaheer Ahmed then asked “Mr Islam, it does not say so (that the account was seized or to be seized). It merely says that who have received the money/donation on behalf or in the name of Muslim League they were directed to deposit the money in the account of Muslim League.”

Defence counsel Fokhrul Islam replied, “Whatever it was, practically under this gazette the transaction in the account of the Conventional Muslim League was stopped.”

Tribinal Chairman Justice Nizamul Huq said, “Well, I understand. You want to submit that accused petitioner’s father Fazlul Quader Chowdhury did not have friendly relation with President Yahya Khan, thats it?”

Fokhrul Islam replied, “Absolutely correct, my lord.” Then he continued his further submission on discharge petition:
“At page 6 paragraph 13, your lordship will find the preamble of the Act. Again at paragraph 14 of the same page you shall find that under Simla Agreement except 195 (actually 200, however, everywhere reference was given as 195) members of the Pakistani force who were directly involved in war crimes, others to be sent back to Pakistan. Bangladesh was not a party to that agreement. However, the agreement was endorsed by Bangladesh.

Now let us have a look on the 1st Amendment Bill (of the Constitution of Bangladesh) as it was presented in the Parliament which has been attached at page 82 of our bundle. The wording of the section 3 of the draft Bill was ‘punishment of any person of including a person who is a member of armed, defence or auxiliary force’. Now let us look into the purpose of the Bill which is attached at page 83. (He read out a part of the initial consultation)”
Tribunal Chairman Justice Nizamul Huq interrupted and asked for an explanation, “It is just the Bill. What about the Act actually passed in the Parliament finally?”

Defence counsel Fokhrul Islam replied, “We shall see that as well my lord.” Then he continued his submission:
“At paragraph 17, page 8 we referred the debate in the Parliament on this said Bill. The debate on this Bill can be found at page 84 of our bundle submitted before your lordship.”
Justice Nassim said, “We do not have the time to read the debate now. What is your submission?”

Fokhrul Islam said:“My lord, please kindly have a look at paragraph 2247 of the debate where it was proposed that the words in section of the Bill ‘including a person’ to be omitted. The then Law Minister Monoronjon Dhar who presented the Bill also accepted that in the presence of Bongobodhu Sheikh Muzibur Rahman.”

Justice Nassim asked him, “Can you please confirm whether it was passed or not omitting those words?”

Fokhrul Islam replied, “Please have look at page 91 where paragraph 2247 of the parliamentary consultation it has been written that it was proposed that the words ‘including the person’ to be omitted. And finally, on 15th July 1973, the Act was passed in the parliament.”

(He then read out the 1st Amendment from a book with him and upon reading out he supplied the book to the tribunal chairman Justice Nizamul Huq. He went through the relevant part of the amendment and satisfied the words ‘including any person was omitted’. He then handed over the book to other members for their consideration. The other 2 members were satisfied as well.)

Defence counsel Fokhrul Islam then added referring to Asaduzzaman, “The leader (Bongbondhu Sheikh Muzibur Rahman) was agreed as well.”

Then he continued his further submissions:
“Now may I invite your lordship to look into paragraph 18 at page 8 where we have referred that the 1st Amendment of 1973 was passed with retrospective effect. Now let us come to the International Crimes (Tribunal) Act 1973. Now may I please invite your lordship to jump to page 103? The then Law Minister brought the Bill before the Parliament. Now let us go through section 3 of that Bill. As per the section 3, the Tribunal has power to try 3 classes of people, a member of (i) army, (ii) defence force, and (iii) auxiliary force.

Now let us come to the objective of the Act which is very much important. (defence counsel Fokhrul Islam read it out before the Tribunal) It has been confirmed from the objective, the same 3 classes of people to be tried under this 1973 Act. Most importantly, Law Minister Monoronjon Dhar presented the Bill in the presence of Sheikh Muzibur Rahman.

Now at page 103, you will also find that ‘auxiliary force’ has been defined in section 2 of the International Crimes (Tribunal) Act 1973. The Act has recently been amended though. However, I shall show that the amendment was not in accordance with law.”

Tribunal chairman Justice Nizamul Huq clarified their position on that issue saying that, “Can we consider the legality of the Act under the constitution, being a Tribunal constituted under the Act in question? We can just follow the Act.”

Defence counsel Fokhrul Islam then again continued his submission by reading out the then Law Minister Monoronjon Dhar’s speech at the parliament while presenting the Bill before it. Then he submitted as under:

“We have agreed to return all Pakistani armed force members except those 195 (ref: page 119). Now at page 12 your lordship will find the list of the names of those 195 (basically 200) members of the Pakistani force.”
Tribunal chairman Justice Nizamul Huq then asked, “What is the authenticity of this list?” He further said, “In the original Act there was provision for Military Tribunal. However, this tribunal is not the same. This Tribunal established upon an amendment in the Act in 2009 and it actually started to work from 25th March 2010.”

Defence counsel Fokhrul Islam replied, “That is exactly what I want to say. My submission is- originally it was designed to try army personnel under Military Tribunal.”

He then further drew attention the tribunal members to paragraphs 121, 122 and 123 of ‘Annexure L’ of the petition bundle. According to those paragraph, Dr. Kamal Hossain empowered by the then Head of the State Sheikh Muzibur Rahman, signed an agreement with Pakistan Government. According to that agreement, President of Pakistan would come to Bangladesh and would apologize for their act in 1971. On the other hand, President of Bangladesh Sheikh Muzib will forgive the Pakistanis on behalf of the people of Bangladesh.

Justice Nizamul Huq said in reply, “Later part of the agreement has been performed i.e. we have forgiven the Pakistanis, however, President of Pakistan did not apologize for their act in 1971; he visited Bangladesh though.”

Finally the defence counsel Fokhrul Islam submitted on the basis of his argument so far that the collaborators should try under the Act No. 8 of 1972 i.e. Collaborator’s Act 1972; not under the International Crimes (Tribunal) Act, 1973 as it was originally designed to try military personnel. The accused petitioner Salauddin Quader Chowdhury then shouted repeatedly from the dock, “correct..correct..correct..”

Tribunal chairman Justice Nizamul Huq then said, “We knew all those fact, however, today we have seen it (through defence submission).”

Defence counsel Fokhrul Islam then asked for an adjournment and Tribunal agreed. However, the counsel informed that further submission on this matter is required and it will take approximately an hour. However, he will not be able to make it on the next day he needs to be present before a bench of the High Court Division of the Supreme Court and if does not go there an arrest warrant will be issued against him.

The tribunal chairman decided the matter will be heard again on Sunday 26th February 2012.

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