Monday, December 16, 2013

Molla execution: Arguments in appellate division review application

Below is a detailed note about what took place at the appellate division on Thursday 12 December, the day it passed its order dismissing the applications on behalf of Abdul Quader Molla seeking to overturn the court's own decision to impose a death penalty 

This does not contain any commentary, just a description of the legal arguments at the hearing, 

I missed the first few minutes of the hearing of the appellate division on Thursday. From speaking to colleagues I understand that at the beginning of the start of the hearing, the court told Razzaq that he did not need to argue anymore on the issue of whether the court has jurisdiction to hear the matter, and that they wanted him to continue on the assumption that this was the case.

I had, at the time understood that the court had accepted that it had a right to hear the review, but it appears that there was no clear order by the court that it accepted on principle that it had maintainability.

It is therefore possible that the court did not in fact decide that it had the right to review its own judgment.

Though defence counsel Abdur Razzaq wanted to provide more arguments as to why the court had the right to review its own judgement, the court urged that he should move onto the merits of their arguments.

Momena's statement to the investigation officer
Razzaq made the following argument related to the failure of the appellate division in its judgment to take into account the statement which was given to the investigation officer by Momena, the sole witness in the charge for which Molla was put to death,

The chronology of the background to this issue is as follows - this was not discussed at the hearing at in any detail but is set out here for better understanding of the relevance:
In September 2010, Momena gave a statement to Mohana Begum, the deputy investigating officer in the case, concerning the massacre of her family. In that statement she told the investigation officer that the men who entered her family’s house ‘were Biharis. They entered along with the Pakistani soldiers.’

Momena tells the officer that one person was present. ‘I know all the Biharis. Aktar Gunda was with them. He was known as a Gunda (Criminal) in our locality,’ she stated.

Molla’s name is mentioned twice in the investigation officer’s report. Momena is quoted as saying: ‘When the war broke out, [Akter Gunda] joined with Kader Molla of Duaripara and started to kill people in Mirpur’ and, ‘I heard about Kader Molla and Aktar Gunda and their force from people around.’

However, the statement contains no allegation that Molla was present at the time of this offence.

On 17 July 2012, Momena gave oral testimony in court. She stated: ‘My father was running towards the house and said “Qader Molla will kill me.” The Biharis along with Akter Gunda and the Pakistan army were also coming behind him to kill my father. My father entered into the house and closed the door.’

Momena went onto tell the tribunal that her father then told her and her sister Amena to hide under the bed. ‘The Biharis along with Quader Molla came in front of the door and said, “Hey ... bastard. Open the door or we will throw a bomb,”’ she said.
‘They then threw a bomb. My mother opened the door with a Da [local arms] in her hand. They shot my mother after opening the door,’ her oral testimony continues.

‘Quader Molla pulled the collar of my father’s shirt when he went to catch my mother ... They forcefully dragged my father out and killed my mother. They killed my sister Khodeza and Taslima. They killed my brother Babu, who was two years old by forcefully dragging him. He was crying to call out for our mother. On hearing [Babu’s] crying Amena shouted and they pulled Amena and tore apart her dress and started to rape her. Amena was crying loudly and then stopped.’

She added later in her testimony that, ‘A person called Kamal Khan who served tea to the freedom fighters told me that “Quader Molla killed my parents”. My witness to my marriage, Akkas Molla also told me the same thing [about Molla] as Kamal Khan had done.’

She then identified Molla in the dock saying, ‘He was young and not that old then. He used to wear Panjabi at that time.’

On 18 July, the defence lawyer cross examined Momena, but failed to ask her about the contradiction between what was stated in the investigation officers statement and what she said in court.

According to the defence lawyers, due to this and other omissions, the lawyer was sacked and replaced.

In November 2012, the defence lawyers made an application to the tribunal requesting that the witness, Momena, return to court so she could be asked this and four other questions.

The tribunal rejected the application stating that making the application was ‘a tactic to cause unreasonable delay’ and there was no legal provision to recall a witness for 'cross-examination'.

In the tribunal judgment, there was no mention of the inconsistencies between Momena’s statement to the investigation officer and her subsequent testimony.

This issue was brought up by the defence lawyer in their appeal, but the appellate division rejected arguments.

Justice Sinha stated in the majority opinion in the appellate division judgement that :

- Section 161 of the country’s Code of Criminal Procedure and rule 265 of the police regulations set out guidance to investigation officer for the recording of their statements of witnesses
- Section 162 of the Country’s Code of Criminal Procedure allows an accused to contradict a witness on the basis of the statement given to the investigation officer.
- The provisions of the Code of Criminal Procedure is not applicable to the International Crimes (Tribunal) Act 1973
- The rules of the tribunal are ‘totally silent as to the manner of examination of a witness by the investigation officer. It may be either orally or in writing, there is nothing in the rules therein guiding the procedure and the manner of use of the earlier statement of such witness in course of the trial.’
- It was ‘not expected from the investigating officer to record the statement of the witnesses in accordance with section 161 of the Code. If he has examined the witness in a slipshod manner, no exception could be taken for such examination.
- If there are any contradictions between these investigation officer statement and what is said in court, ‘the best [that can] be said [is] that the witnesses omitted to make some statement before the investigation officer as they were not asked properly.’
- In any case, the rules of procedures of the ICT make it clear that the defence can only show contradiction between what a witness says in court. Section 53(ii) of the Rules of Procedure states that: ‘Cross examination shall be strictly limited to the subject matter of the examination of in chief of a witness but the party shall be at liberty to cross examine such witness on his credibility and to take contradiction of the evidence given by him.’
This means, Sinha stated that contradiction ‘can be drawn from statements made by a witness in his ‘examination-in-chief’ only, not with respect to a statement made to the investigation officer of the case in course of investigation.’
In arguing the merits of the review, Razzaq argued that Sinha’s argument that statements made to an investigation officer could not be subject to contradiction was an ‘error apparent on the face of the record’ – the test required for succeeding in a review.

He argued that section 53(ii) allowed a witness to be cross examined on issue of credibility. He pointed to the wording in that section that stated, ‘the party shall be at liberty to cross examine such witness on his credibility’.

He said that this ‘credibility’ included what a witness ‘said and did not say to an investigation officer.’

After questioning by Justice Sinha about the section, Razzaq emphasisesthe word ‘but’ in the section, and pointed out that whilst the subsection did say that ‘Cross examination shall be strictly limited to the subject matter of the examination of in chief of a witness’ it then goes onto say ‘but’ and then ‘the party shall be at liberty to cross examine such witness on his credibility …’

‘This is a very important “but” he said.

He said that if the judges wanted to limit contradiction to only that with examination-in-chief, ‘this is not enough’.

Razzaq then argued that a statement to an investigation officer was ‘evidence’. He read out rule 2(9) of the Rules of Procedure (ROP) which states:
“evidence” means all statements which the Tribunal permits or requires to be made before it by witnesses, and it includes all other materials, collected during investigation, placed before the Tribunal in relation to matters of fact;
He emphasized that ‘evidence’ includes ‘all other materials, collected during investigation’ 

‘Statements made to an investigation officer are also evidence’ Razzaq said.

He then pointed to Rule 11 of the ROP which states:
‘After completion of investigation, the Investigation Officer shall submit an Investigation Report together with all the documents, papers and the evidence collected during investigation of offence(s) as specified in the Act committed by a person(s) before the Chief Prosecutor.’
He also pointed to rule 18(1) of the ROP, which states:
Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare 8a formal charge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.
He then pointed to provision of the Act which states specifically that the case diary could not be used by the defence.

Rule 8 of the ROP states: 
‘The defence shall have no right to examine or use the Case Diary in defence of a case.’
Razzaq argued that the case diary was specifically excluded, but there was no such exclusion of statements of the investigation officer statements. ‘I want to ask your lordships the question. If the the rules specifically exclude the case diary, then not the statements from taken by the investigation officer?’

He then pointed to rule 57 of the ROP, which states:
The Tribunal shall apply these Rules which will best favour a fair determination of the matter in issue before it and are consonant with the spirit of the Act. ‘
He then argued that ‘a fair determination of the matter’ required that the statements made by the investigation officer are considered.

He then referred to rule 57(2) [This will be added later]

Razzaq then moved onto section 10 of the Act. And read out sub-section(h) which states:
‘(h) the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question;’
Razzaq said that the Act provided no restriction on cross examination. ‘The tribunal is totally free’ he said. ‘If the framers of the Act wanted to limit the cross examination and exclude the questioning of investigation officers statement, they would have said so.’

'There is nothing in section 10 that precludes my right to cross examine witness about investigation officer statement, so the appellate division judgement is an error on the face of the record,' Razzaq stated.

Razzaq then wanted to refer to the judgment of Justice Wahab that had given a dissenting judgement. However Justice Wahab stated, ‘Thre is no use to refer to my judgment. I will be embarrassed if you do.’

Razzaq then referred to section 19 of the 1973 Act which states:
‘(1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.
He emphasized the need for ‘no technical rules of evidence’
(2) A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.
Complete Justice: Jail Code and Warrant Execution legality
Razzaq then moved on from merits and stated that in the court, when passing its order, ‘must do complete justice’

He referred to article 104 of the Constitution which states:
‘The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance of any person or the discovery or production of any document.’
Razzaq then began to discuss the issues of the jail code

The court however were reluctant for these issues to be discussed saying that the review was only about sentence. However Razzaq argued that whilst that was so, in passing its order on this matter, the court must do 'complete justice' and this required them to take into account these other matters. ‘The court has the power to pass any judgment. What other court can I go to about these matters?’ he argued

The court finally allowed him to do make his points.
Jail Code applicability: He first raised the issue of the jail code. He argued that rule 991(vi) states that an execution should not happen before 21 days has elapsed. He said that this reflected a government order in 1936. ‘The jail code is merely the order of government from British times,’ he stated.

He pointed out that section 20(3) stated, ‘The sentence awarded under this Act shall be carried out in accordance with the orders of the Government,’ and that this referred to the jail code and so government order meant that the 21 days applied. 

He said that the Jail authorities have been following this newly adopted code since June 2010.

He said that every other part of the organisation of the execution had followed jail code provisions, ‘so why was the government not following this provision’

He also argued that the tribunal had assumed that the jail code had jurisdiction.

He pointed to rule 991(1) of the jail code that states that after being informed of the judgement, an accused should be given 15 days to decided whether or not to seek a pardon from the president. And then he pointed to section 991(i) as stating that a person should be given 21 days before execution.

He also argued that the jail code cannot be implemented arbitrary – and not applied unfairly for just one person.

Warrant of Execution: Razzaq then argued that the warrant of execution was not done legally.

He argued (see this to read details of the argument made by defence) that only the court imposing the sentence of death can sign a warrant of execution – but that the warrant of execution in this case was signed by the International Crimes Tribunal rather than the appellate division.

‘So Mollah cannot be executed without curing this,’ he said. ‘And after than have to wait 21 days.

Attorney General's response
The attorney General then made his arguments in a short response

He first of all made a point concerned with ‘maintainability’ and said that the argument of the government was not to curtail the power of the court in any way. Court can make any 'suo moto' order it wishes.

In relation to the argument about what can be subject to ‘cross examination’ he pointed to section 8 of the Act which details the establishment of the investigation agency

He then discussed rule 53(ii) above, and argued that it applied as suggested by the appellate division – and that contradiction of a witness could only take place in relation to what was stated by a witness at the cross examination.

He pointed to Rule 11 of the ROP and stated that there was nothing there that suggested the statements to the investigation officers is ‘evidence’

He then moved onto the issue about the jail code and pointed to section 23 of the Act
The sentence awarded under this Act shall be carried out in accordance with the orders of the Government.
And section 26 of the Act which states:
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force'
‘The ministry of home affairs has sent a letter to the jail authority’, he said

Further Defence arguments
There was a short break, and then Abdur Razzak made some further arguments.

He said that case law showed that in order for a sentence to change it needed to be ‘manifestly inadequate and unduly lenient’ and read out case law to this effect

He said that ICT has imposed a sentence of life imprisonment. He said that the appellate division itself had stated that ‘life is life’ and argued how can it be that a life sentence is ‘manifestly inadequate and unduly lenient’ .

He said that whilst Justice Sinha has at one point said in the appellate division judgement that the sentence was inadequate, he had not said that it was ‘manifestly inadequate’ and had not laid out any grounds for thinking so

‘There was no finding by the appellate division that the sentence was “manifestly inadequate”.

He also added that another ground was the failure of the court to call for the statements made by Momena from Jallad Khana – however he did not go into this in any detail
[This referred to a statement given by Momena on 28 September 2007 to a researcher, employed by the Liberation War Museum’s annex and memorial at Jallad Khana (execution ground) in Mirpur.

In the statement, she states that ‘Biharis surrounded [Momena’s father’s house] and took [her father] away.’

It also states that Momena had told the researcher that she was not present during the incident, and only heard about it later: ‘Because the elder daughter of Hazrat Ali, Momena Begum, left for her father in law’s house two days earlier, she remained alive. ….After a few days the elder daughter of Hazrat Ali Momena Begum knew everything about what happened, but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.’

According to the defence lawyers Momena’s statement to the liberation war museum only became known to them near the end of the trial in October 2012 when the investigation officer mentioned in her cross examination that she had arranged to interview Momena after contacting the liberation war museum’s annex at Jallad Kanna. This resulted in the defence lawyers visiting the place, and finding copies of her statement.

In January 2013, at the time of closing arguments, the defence made an application to the tribunal asking that it direct the museum to produce the original document. A copy of a photograph of Momena’s statement was appended to the application.

The tribunal rejected the request saying that the ‘photographed copy’ of the alleged document would though ‘be taken into due notice at the time of passing our final verdict.’

The tribunal’s judgment does mention the statement but held that it could not be used to consider the credibility of Momena as the copy given by the tribunal had not been authenticated, that they had not been given to the court as part of the defence papers earlier in the proceedings, and it had not been subject to judicial questioning and scrutiny.

‘Inaccuracies or inconsistencies between the content of testimony made under solemn declaration to the Tribunal and their earlier statement made to any person, non-judicial body or organisation alone is not a ground for believing that the witnesses have given false testimony,’ the tribunal stated in its judgment.

In the appellate division, the tribunal supported its decision not to recall Momena to be re-examined on the Jallad Kanna statement. Justice Sinha stated: ‘I want to point out here that there is no scope on the part of a tribunal to consider extraneous facts to bring those facts in its judgement which are not legally admitted into evidence.’]
Razzaq then summarized his final judgements:

1. The review was maintainable – i.e could be heard by the appellate division

2. That it has been show that there was ‘an error apparent on the face of the record’

3. If petition is denied, then, the court should take into account Article 104 and its ability to pass orders for ‘complete justice’

4. That around the world it is now accepted that accepted that one should not take a life

The Attorney General was asked if he wanted to respond and he said no.

Final order
There was a short adjournment and the court then came back and said that both of Molla’s applications were ‘dismissed’ . There were no observations.

Tuesday, December 10, 2013

Molla's execution

What is happening to Quader Molla. Updated when new information comes in
You will need to update your page 


10.40 pm: What happened at the appellate division?
I have written a descriptive note on the legal arguments that were made at the appellate court on Thursday 12 December by the defence counsel and the attorney general, prior to the court that same day dismissing the defence applications for review of its decision sentencing Molla to death.


2.38: What to think about Post Molla violence? - see below

2.37 pm: Jamaat defence lawyers urge Molla supporters to protest peacefully against judgement
Interesting. Abdur Razzaq, the Chief Defence Counsel, International Crimes Tribunal, and also a member of the political leadership of the Jamaat, has sent around this press release to journalists 'urging' the 'followers and supporters of Mr. Abdul Quader Mollah express their grief in a peaceful manner. Because one wrong cannot justify another.' His statement reads:
International criminal law experts are unanimous in their opinion that the law under which Mr. Abdul Quader Mollah was tried was flawed and defective. This has led even countries where capital punishments are allowed to make representations to the Government to halt the execution. The defence has also made it clear that both the ICT and Supreme Court judgments are wrong. 
While we sympathise with the sentiments of the followers and supporters of Mr. Abdul Quader Mollah, we urge upon them to express their grief in a peaceful manner. Because one wrong cannot justify another. Equally we call upon the police and the law enforcing agencies to allow citizens to exercise their fundamental right of freedom of expression without any fear or intimidation.
This is very welcome. I have in the past said that the Jamaat defence team must be active in reigning in their supporters from committing violence - most recently in relation to the death or Mustafa Howlader

2.20 pm: What to think about Post Molla violence?
On Tuesday (see below at 1.26 pm), before Molla was executed, I wrote this about the likely violence that would result from any execution:
One man, Molla will be executed by the state, and the question is - how many further deaths will also be directly caused by the state's decision to execute him (and, of course, no one will be brought to justice for any of those). I do hope that the authorities are cognisant of the likely violence that will take place if Molla is executed in these febrile and unstable times in Bangladesh, and have measures in place to ensure that people are not killed. Clearly those who are involved in violent recrimination are responsible for their actions - but I would argue that the state also has a responsibility not to do something, like execute Molla, if it could result in significant numbers of innocent people dying.
Some people criticised me on Facebook - the ubiquitous website where so many interesting conversations about Bangladesh politics seem now to take place! - for supposedly condoning the resulting violence. Of course that was never my intention, and a clear reading of what I stated makes that clear.

However, we are now in a situation where at least 10 people were killed yesterday in political violence - both AL activists (by the Jamaat) and of Jamaati activists (by law enforcement agencies). How should one view the violence and deaths, and more that is due to come? Of course this is also a question that can be asked of the hundreds of deaths in that last couple of months resulting from the political standoff between the AL and the BNP - though I shall restrict my thoughts to the post-Molla execution violence.

Clearly, as I said in my original note above, those who are primarily responsible for these deaths, and the ones who could or should be brought to account for them, are those who immediately perpetrated the violence. There is no question about that. There is no justification at all for killing innocent people simply on the basis that one does not like a court judgement. And what I state below must be seen in this context.

Nonetheless, that cannot be the end of the matter. It was entirely forseeable that if the state executed Molla there would be violence and innocent people would be killed.

Was it appropriate for the state to execute Molla in these circumstances, and how much blame should the government have in doing so?

The decision by a state - even after a judicial process - to kill someone is at the very best of time a very sensitive and for many controversial subject. In this case, he also happened to be a political leader of an opposition party, whom this government (whether justifiably or not) has been trying to dismantle bit by bit. Hundreds of Jamaat activists have been arrested, and most of the senior and middle level membership is in hiding. In addition, there is a big political stand off between the governing party and the opposition bloc (which comprises the Jamaat) and the country (other than Dhaka) has been in almost gridlock for a month, and dozens in that period have been killed.

Added to that is the issue of the fairness of the proceedings of the trial. The lack of evidence - and the contradictory statements given by the sole witness - involving the charge which resulted in his death penalty, has been discussed earlier in this blog. The government obviously does not accept this - but even if it does not, any one with half a brain (and there are many in the government of course with far more than that!) could appreciate that putting someone to death in this circumstances was controversial and would. in the stand-off between the parties, result in a vicious response from the Jamaat.

In addition to this of course, was the timing. It was clear that the government wanted this done by 'victory' day and before the so called 'elections' that will take place on 5 January. There is something particularly creepy putting someone to death to get the maximum political advantage, which it was in part clearly designed to achieve. And of course the government has harnessed significant political advantage - huge positive coverage in the mainstream newspapers, its supporter base happy, fulfilling its election manifesto commitment etc - though it does remains unclear whether this momentary political advantage will have much of an impact as most people with an independent bent of mind must now appreciate that the elections on 5 May are a farce.

So where does this all get us. One man is executed A large number of people are very happy, though probably most in Bangladesh are confused quite what to think (agreeing that people should be held to account for 1971 crimes, but thinking that the court process was politicized), and a minority oppose it. In one day 10 people people get killed in response, and many more will follow. And no one for sure will be very much concerned about their families and what they think.

Whilst it is difficult to argue on a matter of principle that governments should be stopped from doing things that they think are right on the basis of threats of violence or when violence may happen - I would also argue when deaths and violence are so foreseeable consequences of an action that they are about to do, then that government does have a responsibility to make every attempt to minimize the violence particularly when the actions that they are about to take are controversial, and when the government is about to gain political advantage from it.


7.45 pm: What the papers say 
What did the editorials of all three main English language papers say about the execution of Quader Molla.

All of them were rather jubilant about the execution. For the Daily Star Molla 'met his deserved fate' in what was 'one of the most transparent and open trials were all the accused was given all the facilities to defend himself'. For the Dhaka Tribune, the country was finally dealing with tits 'original sin' which the country had not dealt with for 42 years, but that now the victims of 1971 have 'received a measure of justice.' As for New Age, its editorial said that the execution calls 'for unreserved and unbridled celebrations' and that it was in fact 'only the beginning of an end to the wait for justice in relation to the war crimes perpetrated during the war of liberation.' Of the paper, New Age however was the only paper to mention what they described as 'conspicuous anomalies during the trial' - though it seemed to balance this with its strong condemnation of the Jamaat.

See them below (in no particular order)
The Daily star stated:
Genocide perpetrators answer to history
THE wheels of justice have turned full circle. One of the cohorts of the Pakistan occupation army, a collaborator in their crimes and nine-months of brutality in Bangladesh in 1971, and himself a perpetrator, met his deserved fate. It would be some solace to the relatives of the victims to see that justice will have been done, albeit delayed.
With the hanging of Quader Mollah the trial of one of the accused in the crimes against humanity will have run its full course. In what was one of the most transparent and open trials, where the accused was given all the facilities to defend himself, something he did not accord to his many victims, and where all the legal procedures provided in the Constitution, including appeal, were made available to him, the sentence of death was awarded by the highest court of the country. That will, we hope, answer the critics and detractors of the trial about the clarity of the entire process.
We congratulate Sheikh Hasina and her government for not only starting the trial after long 40 years of the commission of the crimes but also executing the final verdict of the court in one instance; that, notwithstanding the dubious attempts by some quarters to malign the trial and make it controversial.
It was the aspiration of the people to see that the war criminals are given the highest punishment, and it would be unfair to the many victims of these criminals and to the martyred freedom fighters to see the execution as a revenge or retribution.
Expiating our original sin
Can a nation in which war criminals can hold their heads up high, arrogant and unbowed, ever move forward and face the future with confidence and assurance?
Our failure to bring to justice those who were guilty of war crimes against the Bangladeshi people in 1971 was always our original sin as a nation.
The fact that those who had committed such wrongs should have been able to walk free with impunity and rise to the heights of power in independent Bangladesh was a national disgrace.
It has taken 42 years for this wrong to be righted, but at 10:01pm on December 12, 2013, with the hanging of the infamous Butcher of Mirpur, Quader Molla, the dead of 1971 finally received a measure of justice.
The damage done to our national psyche that has come out of our failure to fully come to terms with the Liberation War has been immense. Can a nation in which war criminals can hold their heads up high, arrogant and unbowed, ever move forward and face the future with confidence and assurance?
It is a question of simple justice. The message that was transmitted through our failure to hold the guilty accountable was as simple as it was chilling. If not even crimes of the magnitude of murder and rape and running death squads merited punishment, then what did this say to the common man and woman in Bangladesh?
If those who had committed acts of unbelievable cruelty and brutality during the course of opposing our independence could not only escape punishment for their crimes, but be given pride of place in independent Bangladesh, then what did this say about the country we had built?
At long last, we have finally begun to honour the memory of the dead by holding to account those who were guilty of war crimes in 1971.
And New Age stated (the paper where I am employed)
Quader Molla’s execution: a milestone in history 
THE execution Thursday night of Abdul Quader Molla, who had been convicted by the International Crimes Tribunal of war crimes and subsequently sentenced by the Supreme Court to death, is a milestone in Bangladesh’s history; the assistant secretary general of Jamaat-e-Islami was the first to walk the gallows for perpetration of genocide and other crimes against humanity, spearheaded by Pakistani military forces, during the war of liberation in 1971. The execution also marks the beginning of an end to the nation’s prolonged wait to start getting rid of the proverbial albatross, which has hung heavy round its neck for so long, thanks primarily to the political opportunism displayed by the major political camps since independence. It does indeed call for unreserved and unbridled celebrations; regrettably, however, there seem to be some uneasiness especially among the sections of society inclined to critical thinking about some conspicuous anomalies during the trial and also in the lead-up to the execution of Quader Molla.
Such anomalies, the result of a general lack of sincerity and efficiency on the part of the ruling Awami League and the government that it leads, essentially played into the hands of Jamaat and others that have relentlessly sought to render the very trial of war criminals controversial. It goes without saying that the over-enthusiasm of some loquacious ministers to publicly predict the outcome of the trial and even the timeline for execution of the convicts has only lent credence to the allegations that the trials and the tribunals may be advancing the partisan agenda of the ruling party. The controversy arising out of the last-minute postponement of Quader Molla’s execution Tuesday night although two state ministers of the government had publicly said earlier in the day that he would be hanged past midnight and that all legal options had been exhausted, and sustained by the eventual chaos and confusion over the review petition and jail code seems to have only deepened the uneasiness in society.
Equally, if not more, disquieting was the reign of terror that Jamaat and Islami Chhatra Shibir have unleashed across the country since the execution of Quader Molla. The widespread violence and vandalism has amply showcased the strength, organisational and otherwise, that Jamaat and its student front have mustered over the past four decades or so. Here, too, the blame for the increasing arrogance of these undemocratic forces falls squarely on primarily the shoulders of the Awami League and the Bangladesh Nationalist Party. After all, these two parties, in their ideologically bankrupt and ethically challenged pursuit of state power, have hardly hesitated to make Jamaat their bedfellows at different junctures of the country’s political history since independence.
In any case, as indicated, Quader Molla’s execution is only the beginning of an end to the wait for justice in relation to the war crimes perpetrated during the war of liberation. While the majority of the people want the perpetrators to pay for the crimes they committed more than four decades back, they also want the war crimes trial to be above and beyond any question or controversy. With several cases nearing completion and several others under way, the state must ensure that the trial process meets the national and expectations of transparency and credibility,
As for the violence unleashed by Jamaat and Shibir, the government needs to realise that the fight against such toxic and murderous politics cannot be won through coercion by the state machinery; it needs to be fought ideologically, politically and culturally
If anyone can send translations of the editorials of some of the Bangla papers, particularly Prothom Ali, Bangladesh Protidin, Jugantor and Somokal please send to

5.10 pm: 
Tanvir Haider Chowdhury's memory of his father who was amongst the intellectuals killed in mid-December 1971, by Al Badr death squads in the days immediately before Pakistan's surrender, is a stark reminder of what the issues are all about.

4.21 pm: The Pakistan government and Molla
We should not really be suprised about Pakistan's reaction to the execution. The country has never come to terms with its involvement in the 1971 war - and no action was taken against military officers which its own commission found responsible for tens of thousands of death.

Dawn reports that:
'Federal Minister for Interior Chaudhry Nisar Ali Khan Friday expressed ‘deep grief’ and concern over the execution of imprisoned political and religious leader Abdul Quader Molla of Jamaat-e-Islami (JI) in Bangladesh.'
Also, it has been reported that Jamaat-e-Islami Pakistan is calling on the Pakistan government to take up the issue with Bangladesh.

I think we can be pretty sure that the Pakistan government will keep well out of this issue, other than these words for a domestic audience. The Pakistan government must be at least content that the tribunal is not proceedings with in absentia trials against army officers, which as far as I can tell, it could certainly do.

It is important to remember that according to leaked wikileaks cables, the Pakistan government lobbied the UN to ensure that it would not given any formal assistance to the Bangladesh government over the trials

3.20 pm: Dhaka Tribune Editor's op ed: 'Guilty as sin'
I am going to look at some of the editorials and op-eds in different English language newspapers. I will look first at the op-ed written by Zafar Sobhan, the editor of the Dhaka Tribune, and regarded as an insightful commentator on Bangladesh politics [Disclosure: former colleague and related by marriage]

He begins his  article setting out why he has always supported the trials, and then comes, I think, to what is the most important passage:
So here we are, the war crimes trials are winding their way to their inexorable end, and the first of the war criminals has been hanged. Now that the executions of the war criminals is a reality and no longer an abstraction, how do I feel?
I do not oppose the death penalty nor am I moved by procedural arguments in favour of the defendants. Due to the fact that more than 40 years have elapsed since the crimes at bar were committed and that those being accused have been important men who have had plenty of time to cover their tracks, dispose of evidence, and intimidate witnesses, to say nothing of the severe limitations of the prosecution, the trial process is certainly open to question. But this should not be confused with innocence.
The legal dictum that it is better for a hundred guilty men to go free than for one innocent man to be convicted only holds true if we presuppose the accused is powerless. When, however, the accused is the one with power, holding to such a standard is itself more likely to lead to a miscarriage of justice.
The sad truth is that in Bangladesh, the powerful have always managed to escape justice by exploiting the weaknesses and loopholes in the legal system, and if we are to cleave to a maximalist understanding of the rights of the accused and the burdens of prosecution no one powerful could ever be prosecuted for anything in Bangladesh.
Quader Molla was guilty as sin. The fact that the prosecution may not have done the best job of proving it does not in any way lessen his crime or justify his exoneration. He has received the justice he deserved.
Zafar thinks Molla is guilty 'as sin', that he got the justice 'he deserved'. Why does he think that? Well, Zafar does not say exactly where this certainty comes from. He seems to accept that it does not come from the trial ('that the prosecution may not have done the best job of proving it does not in any way lessen his crime) so it would be interesting to know from where he did?

His argument is that the Molla and his supporters have covered their tracks. Of course that is possible - but it could also be that perhaps the evidence was not there. He does not seem to accept that possibility at all.

In any case, for Zafar the trial is not really relevant to the issue of guilt. Why is this? He quite rightly argues that powerful accused in Bangladesh can and do escape accountability by all variety of means. However, what the Tribune editor does not refer to is how in Bangladesh the state can also manipulate  trials - and that no doubt Bangladesh jails is full of innocent people.

In this case the accused's rights were so effectively removed by the court (what Zafar appears to refer to as simply 'procedural' problems), such that a witness could come to court, give testimony and - as long as she was not inconsistent during the time in which she testified - her credibility could not be impeached, whatever contradictory statements she may have given prior to her court testimony.

Surely, if one supported the trial process, then one should have had in mind a certain set of standards to ensure that the court process was legitimate.

Zafar is right later in the article to put the blame on the government. They could have done so much more to ensure the process was credible. But I do  disagree with him that it is only the victims and the country who deserved a better process. The accused did as well as, despite Zafars's instinct that Molla is guilty as sin, that surely is not good enough reason to put someone to death.

3.00 pm: Why are so many people joyous about Molla's execution
How does one understand why there are so many people in Bangladesh (including perhaps the vast majority of my friends and those I know socially) appear to be 'joyous' or at the very least very pleased with the execution of Quader Molla - when, I am sure that many at least do, at the same time, accept that the evidence in relation to the charge for which he was put to death, was, as the Economist states today, 'flimsy'?

In November 2012, when the skype scandal was about to blow, I wrote an article on why the civil society establishment were so unwilling to be critical about the tribunal - and some of the points I made in that article are relevant here.
I first of all said that there were many 'noble and principled reasons' about why these people have been full square behind the government's decision to both establish the tribunals and the process of the tribunals themselves.
- terrible crimes were committed in 1971 by the Pakistan military, aided and abetted by their local collaborators;
- amongst those who supported the military - not just politically, but 'militarily' - were those who were members of the Islamic-minded parties of which the Jamaat-e-Islami were perhaps central.
- although there were some form of attempted accountability immediately after the war, many of the leaders of the Jamaat-e-Islami in 1971 had left the country or at least were not within the jurisdiction and so were not party to these mechanisms (which were in any case problematic).
- after 1975 and the assassination of the country's first president Sheikh Mujib, the Jamaat-e-Islami began to re-group so that by 1990, when the first proper democratic elections taking place, the party was able to obtain 17 seats in the parliament, holding the balance of power. Since 1990, their strength increased and in their coalition with the Bangladesh Nationalist Party, three of the Jamaat's leaders - all of which were said to have been involved in war crimes during 1971 - were made ministers.
- to end impunity, and ensure accountability, trials of those alleged to have committed war crimes were necessary and in fact a legal obligation upon the government;
- the struggle for accountability has been a long one, with many political forces conspiring against it, that the trial process needed its support.
I then asked however why does there appear to be such a hard line support for the tribunal amongst those who would be the first out of the gate to crtiticse the government if similiar problems existed in other accountability processes. This is what I stated then:
- there remains huge emotion relating to 1971. Many of the civil society's leaders fought in 1971 for independence, and saw at first hand terrible crimes being committed. After Sheikh Mujib's assasination, they also saw in front of their very eyes not just the reemergence of the Jamaat as a political force, but a much stronger force than they ever were before the war.
- this is not just about accountability for 1971, it is also about civil society establishment's widespread hatred of the Jamaat-e-Islami as a political force in Bangladesh. The civil society establishment is overwhelmingly secular, and see themselves as sworn enemies of everything that the Jamaat-e-Islami stands for. The trials therefore have another purpose - to weaken, if not destroy, the party.
- There is a common assumption that these men are guilty of the crimes alleged and that any defense they provide is simply an attempt to manipulate the judicial process. (Where they get this sense of absolute certainty is an interesting question to be considered another time.)
- the criminal justice process in Bangladesh is amenable to delay, corruption and manipulation which has resulted in the past in impunity for those alleged to have committed high levels of corruption and other crimes in Bangladesh. The powerful, accused of serious crimes, have again and again escaped accountability. This, they say must not happen in relation to these war crimes tribunals.
At the end of the day, why are so many people joyous about the execution, of Quader Molla, when the evidence for the particular charge on which he was put to death was so weak? This is all about the magnitude of the crimes that took place in 1971, combined with the lack of accountability for them in subsequent years. There was the Pakistan military officers in particular being allowed to return home, and then Mujib's amnesty towards local collaborators in 1973 (which gave amnesty to those involved in political crimes and, as I understand, it the de facto end to any further prosecutions under the collaborators ordinance). To the huge death toll, and the lack of accountability should he added one other factor - with the Jamaat-e-Islami never having paid the price for their support of the Pakistan military, they have in subsequent years been able to climb into the most senior positions of power within Bangladesh politics."

I do respect these positions in many ways. However, at the end of the day, do these reasons justify the execution of a man on a charge with the evidence was so unconvincing? I don't think so - though many others disagree.

2.15 pm: Contacting the blog
For those interested in joining the conversation, or who want to raise a point in the blog please tweet @davidbangladesh or e-mail Or of course you can leave a comment at the end of the blog post

1.35 pm: Supporting accountability and fairness
Those reading this blog for the first time might have been confused, in its focus on the Molla execution, about my general position about the war crimes trials relating to the 1971 war - and in hindsight it may have been useful to have stated something at the start of this page to clarify my position

I first became interested in the issue of 1971 war crimes issues in the making of the film the War Crimes Trials which investigated the conduct of three men who had at the time of making the film lived in the UK, but who, the film alleged, were in 1971 members of the Jamaat-e-Islami and its student wing and were involved in war crimes. This included Chowdhury Mueen Uddin whom the film showed was involved in the abduction of intellectuals, 43 years ago this week, at the very end of the 1971 war, between 1 to 14 December. See: Tracking down the killers

I have always held the position that it was appropriate that trials took place to bring those accused of some of the worst war crimes during the 1971 to account through a judicial process. At the same time I have always felt that the process should be a fair one; this was in my view particularly important since the crimes took place 43 years ago (credibility of evidence becomes difficult to assess), and there was a risk that the process could become politicized. More over, I have noted in my time working on the issue of war crimes that people in Bangladesh believe many things about people's alleged involvement in war crimes, but the evidence is often not there to substantiate the allegations. In people's head, their beliefs can however become facts

It was of course not just me who thought that standards were important. The Bangladesh government itself has all along stated that the tribunal would meet 'international standards' - so the issue of standards was very much on the table.

Right from the beginning I was concerned about the inadequacies of the 1973 Act - particular in light of the Article 47A of the constitution which significantly limited the rights of the accused. [i.e A question of standards] However my view at the beginning of the actual trials themselves, I thought it was possible that if the tribunal acted independently and sought to have a fair trial, such a trial could take place. Much has happened since then to raise significant questions relating to that point - which I might over the course of the next day raise in this blog.

However, not everything is about fairness to the accused, there are important issues to raise about justice to the victims, of which there were so many. And that issue I will come to next

1.30 pm: Post Molla execution blog continuing
I shall continue this particular 'rolling' blog on Molla's execution for another day or two to provide information and analysis on the response to his execution. The material written below was very narrowly focused on the impending Molla execution and events immediately after - and did not discuss general issues of justice relating to the 1971 war which will help explain to many why so many people in Bangladesh were 'jubilant' about the execution.


1.12 am: Preventing Molla a proper defense - restricting defence witnesses
I want to finish this blog tonight with one further set of thoughts. 

I said earlier (7.02 pm) that there were two key reasons why I thought that the execution of Molla was highly objectionable. The first one was the total lack of credible evidence for the crime for which hw was put to death (discussed earlier). The second reason is to due to the preventing Molla from putting forward a proper defence. Molla was restricted to only 5 witnesses, whilst the prosecution could bring as many as they wished – in fact they brought 12.

What was the justification for this restriction. You really would not believe this - but the tribunal said that it was not the job of the defence to knockdown the prosecution case, or to discredit prosecution witnesses or to question their credibility. All the burden of proving the case was on the prosecution, so the defence did not have any reason to bring witnesses for that. The only witnesses that they were allowed to bring were alibi witnesses, and five, the tribunal thought was enough.

I doubt there is any criminal justice system in the world – in fact normal Bangladesh law does not even support this principle – that follows this rule that the defence has no right to bring witnesses to discredit the prosecution case.

But that is what happened at the tribunal And the really worrying thing for Bangladesh is that the appellate division did not disagree with this. Is this now the principle of law in Bangladesh.

The tribunal’s logic is that since it is for the prosecution to prove the charges, the accused lawyers have no role in disproving them - by doing such annoying things like bringing witnesses.

This is rather extraordinary. Yes, the burden is on the prosecution to prove its case ‘beyond reasonable doubt’, but this in no way means – and Bangladesh law has never stated otherwise - that the defence cannot bring witnesses to discredit different elements of the prosecution case, and show, for example, the unreliability of prosecution witnesses.

Doing so is a completely standard defence practice in just about any country around the world – including in Bangladesh.

The need for the prosecution to prove its case ‘beyond reasonable doubt’ cannot be turned into a rule that prevents the accused from disproving the case against him or her. 

To read about this more fully, look at this article: Are the Tribunals Justified in restricting witness numbers

12.02: Reports that Ershad arrested may not be correct

Colonel Ziaul Hasan, Addition DG of RAB, has said, ‘Ershad was not arrested, He was taken to Combined Military Hospital in the cantonment’. 

11.43 pm: BREAKING - Report that General Ershad has been arrested, waiting for further confirmation

11.29 pm: Molla's son apparently arrested
Molla's lawyer reports that he had spoken to one of the sons of Molla who told him that police came to the house in Dhaka and arrested another son, Moudud, a number of other relatives and two personal assistants. Police have told them to send someone to police station and they will consider releasing them

11.08 pm: Molla's family house in Dhaka has reportedly been surrounded by members of the student wing of the Awami league who are not letting family out of house, and are banging on the gate

11.07 pm: The lawyers for Molla have said that the government is not giving the body over to the family. Jail officials have told the family that they will take the body themselves to Faridpur, the ancestral home of Molla, and bury the body themselves.

10.50 pm: Official confirmation of hanging
Deputy Commissioner Dhaka has confirmed to New Age reporter that Molla was hanged at 10.01 pm

10.40 pm: According to jail code the body must remain hanging for 30 minutes before being taken down

10.28 pm: Large number of vehicles with armed police enters inside jail

10.17 pm: Still no official confirmation of hanging

10.16 pm: ATN News appears to show picture of noose inside the jail (without body)

10.14 pm: TV news stations all reporting that Molla executed. Ambulance gone into prison - to collect body reporters assume

10.10 pm: Unofficial reports suggest that Molla has been executed

9.58 pm: Execution perhaps at 10 pm, in a few minutes
Another reliable source now saying that execution could take place in next few minutes

9.40 pm: Molla execution looking to be imminent (see below)

9.35 pm: Why the execution now?
Before this week started and anyone asked me what I thought would happen to Molla, my standard answer was that I did not think that the government would go ahead with an execution before the elections unless it wanted a rationale to announce a state of emergency. At that time my thinking was as follows: if there was competitive elections with the BNP, then arguably it could serve the AL's political interests to hang Molla, as it would at least make enthuse its political base essential for an election. But since the elections are not going to be competitive, with just the AL and a few of its small party allies taking part, I could not see much of an advantage for the AL - and in fact why would they do something like executing Molla which would open up a new violent front against it.

Of course, if the AL wanted an excuse to call a state of emergency then executing Molla would be the perfect thing to do. Execution, would be followed by widespread violence (over an above the existing unstable situation) and that this could provide the AL an excuse to call in the army, blaming the Jamaat at the same time.

When suddenly, the execution was announced on Tuesday, it suddenly appeared, with the US Asst Sec General in town, that there might be another explanation. I had around that time heard numerous reports that the UN diplomat had made progress, and that he had come with a plan, that many in both parties accepted, the prime minister would be relieved of her executive powers, with the president taking them over. It seemed plausible that perhaps the Molla execution was a sign that a political deal was in the offing and that the prime minister wanted to deal with the execution quickly before she lost her executive powers. (see 6.55 pm, Tuesday).

A diplomat that I spoke to scoffed at the above idea and thought that it was more likely the Awami League was trying to put the BNP into a difficult position. If it sided with the Jamaat, the AL could blame it for the violence and for leaving the dialogue (assuming it did that). If the BNP did not support Jamaat, their alliance would be put under strain. (see 8pm, Tuesday).

By view now is as follows:
- although there is no competitive election, the AL needs to enthuse its base, at least to make sure its supporters come out at the election. Molla's execution would help with this
- the war crimes trials was an election commitment, and one that the party needs to show that it fulfilled. An execution, would be the perfect example of this
- the AL leaders must feel pure hatred for the Jamaat and the role that they have played in supporting the BNP's seige and other opposition activities. The execution would be payback. 
- who know what will happen in the future, so best to get it done with
- and of course it will be useful in putting the BNP in a difficult position (as stated above) and also could provide a rationale for emergency (if they wanted to use it)

9.33 pm: Key personel inside jail for execution
District magistrate, Imam and Civil Surgeon inside the jail

9.28 pm: Execution appears to be imminent
Others reports suggest that execution could happen at 10.01 pm but no formal confirmation at present

9.23 pm: Defence lawyers not allowed to see Molla
Defence lawyers are reporting that the jail authority has rejected their application to meet Molla and that unofficial sources are telling them that the execution will take place soon.

8.51 pm: Molla seeks meeting with lawyers
After meeting up with Molla in jail, his family have told reporters that he would like to consult his lawyers to decide on whether to apply for clemency, and the lawyers have submitted an application to the jail authority for a lawyer's visit.

7.05 pm: Why Molla should not be executed
This blog contains neutral and independent news, analysis and commentary on the Molla execution issue, but let me be very clear about my own position on the imposition of the death penalty of Quader Molla. I am very much against it. 
Yes, I do not support the death penalty, but that is not why I am against the execution of Molla. 
Yes, I think there are many legal inadequacies in the International Crimes (Tribunal) Act 1973, but that is also not the reason? Yes, I am aware of the many controversies and scandals that have taken place at the tribunal (including the abduction of a defence witness, the release of skype conversations/e-mails showing at least one of the tribunal judges in collusion with the prosecution and the government, and at least 6 tribunal investigators and prosecutors seeking last month Awami League parliamentary seats) – but again these controversies, and there are many more, are not in themselves the reason why I object to Molla's death penalty.

The reason for thinking that it is outrageous to put Molla to death is because of the flimsiness of the evidence on the charge which he has been sentenced to death and the fact that the tribunal simply did not allow him to put forward his defence, restricting his witnesses to five.

On the evidence issue (I will discuss the witness issue later) , please look below at Tuesday at 7.05pm which details the situation. 
What we have is as follows: a witness, giving evidence in court 42 years after the event stating that Molla was present, who had previously given two statements - one to a 1971 museum and another to the investigation officer - neither of which stated that Molla was present at the scene, and one of which stated that she was not even present at the time of the incident.

And we have a court – both tribunal and appellate division – who have decided not to take into consideration any of these previous statements which do obviously raise issues about the credibility of the witness.

Added to this, there is the fact that Momena, who was 13 years old in March 1971, had a breakdown after the murder of her family and, as far as the evidence shows, had never in the 42 year period between then and the time she gave her testimony in court, mentioned to anyone that Molla was present at the time her family was killed.

If all of this had been known by the investigation and prosecutors, there is surely no way that a case like this, would ever have resulted in a prosecution in most jurisdictions - yet alone going to trial and resulting in a conviction or execution.
6.15: Warsi wins award for most mundane quote
Can there be a more mundane statement about war crimes by a British minister in Bangladesh right now? A colleague sent me this 'key' quote that she just gave at her press conference.
'Of course we believe and always have that people involved in political crimes should face justice and that there cannot be a culture of impunity for those who committed these horrendous crimes and that people need to account for crimes they committed .... but UK has very clear position on the use of death penalty. We oppose it in every country. 
Not a comment about the fairness or the process of the trial. It is a pointless comment which the Bangladesh government will be very happy to hear. And there is DFID giving millions of pounds to the Bangladesh government for reform or the police .... 

Two days ago the FCO gave a relatively good one (see 8.44pm on Tuesday)

6.02 pm: Important to remember that there remain many in Bangladesh who very much support the execution of Molla

5.57 pm: Copy of short order
Here is a copy of the short order. Nothing more than what is mentioned earlier in the blog (12.47 pm)

5.35 pm: When will the execution take place
Still remains uncertain when the execution will be carried out. It could be tonight, although the government may try to exploit maximum political capital (for their own supporters) from the execution by doing it on the symbolic days of 14 December night (the day when many intellectuals were killed by Al Badr/Pakistan military in 1971) or 16 December (the day in 1971 when the Pakistan army surrendered). The government has in the past used the days of 25 March (independence day) and 16 December (Victory day) to set up the tribunal and arrest people, and it is quite possible that the government could do the same this year. You may remember in the skype conversations, the government was putting pressure on the tribunal to impose the first sentence against Golam Azam/Delwar Hossain Sayedee in December 2012.

Of course, the very fact the government could even choose to try to obtain the maximum political/symbolic advantage from a state execution is rather hideous - but this is where we are right now in Bangladesh.

Since the jail code does not apply, no-one knows what are the rules by which he will be put to death - whether or not the family for example will be informed.

5.20 pm: Warsi Press Conference
Warsi should be in the middle of a press conference at the British High Commission. Unfortunately I was not able to go, but will report as soon as I have some information.

5.11 pm: Execution can take place at short notice
Newspapers are reporting that the appellate division order relating to Molla has reached Dhaka Central Jail and that the execution can take place at short notice. The family have sought to meet Quader Molla again before he is put to death

3.30 pm: Warsi meets PM
UK embassy confirms that senior foreign minister Baroness Warsi (see below) has met up with the prime minister, Sheikh Hasina this morning. The embassy at the moment is being tight lipped about what she said. However according to other diplomatic sources, Warsi informed Hasina about European Union concerns relating to death penalty, particularly in the context of the impending Molla execution. No doubt, of course, she spoke about other things as well - she is here to look at the election issue and related violence! I think they met at 11.30 am, so this would have been before appellate division passed its order dismissing defence appeals.

2.54 pm: Baroness Warsi in Town
Baroness Warsi, Senior Minister of State at the UK Foreign & Commonwealth Office arrived in Bangladesh this morning! I wonder what she is doing today?

2.49 pm: Human rights Watch calls for halt of execution
Strongest statement yet from Human Rights Watch - and it needs to be. Picks up on a number of points, including the one just set out below about lack of independent appeal of death sentence, and the factual weaknesses in the case.
Human Rights Watch has long supported justice for war crimes committed in Bangladesh’s 1971 war of liberation. Those responsible should be brought to justice through fair trials that meet international standards. Human Rights Watch opposes the death penalty in all circumstances.  
Human Rights Watch calls on Bangladesh not to carry out the execution of Abdul Quader Mollah and deplores the fact that he will be executed after an unfair trial and denial of a full and impartial appeal of his conviction. Mollah was accused of atrocities in the 1971 war of liberation and was originally sentenced to life in prison. The government pushed through changes in the law with retroactive effect that allowed the prosecution to appeal the acquittal. Mollah was sentenced to death on the basis of the testimony of a woman who was 12 years old in 1971 and had changed her story. Human Rights Watch said that many governments and the United Nations have called on Bangladesh not to impose the death penalty in this case and expressed concern about the conduct of the trial. Human Rights Watch takes no position on Mollah’s guilt or innocence, which can only be established after a fair trial.

“War crimes verdicts have already led to major protests and violence this year,” said Brad Adams, Asia director at Human Rights Watch. “A hanging in such a controversial case in a volatile political atmosphere in the run-up to national elections will likely lead to large numbers of deaths, injuries and property damage. Many observers believe that the government wants an execution so close to the election in order to score political points. The government should not act irresponsibly at such a volatile moment. The government and protest leaders must take all possible steps to avoid violence.”
2.45 pm: The government's position is now stronger, but it was no independent appeal
Interestingly, whilst many of Bangladesh's pro-hanging brigade were very critical of the stay of execution, they and the government are now in a much stronger position with the review application having been heard by the court. They can now say that Molla had his right to review, and the court rejected it on merits.

This of course sounds good. In fact of course, it was only a review, not an appeal. A review in front of the same judges who gave the death sentence, who only published their judgment less than a week ago! The defence were having to try to persuade these same judges who had passed the death sentence to say 'yes, we had made a terrible mistake and Molla now does not need to be hung!' It was never ever going to happen.

Important to note. This was not an independent appeal of the death sentence decision

2.15 pm: Short order being signed
A defence lawyer informs me that the appellate division's short order dismissing the defence reviews is now being written up and signed, and will probably be ready to be sent to jail authorities today. This will in effect vacate the stay of execution, and the jail authorities probably will only require a new government order to undertake execution.

1.26 pm: Will Molla's execution result in more deaths? Do we care?
One man, Molla will be executed by the state, and the question is - how many further deaths will also be directly caused by the state's decision to execute him (and, of course, no one will be brought to justice for any of those). I do hope that the authorities are cognisant of the likely violence that will take place if Molla is executed in these febrile and unstable times in Bangladesh, and have measures in place to ensure that people are not killed. Clearly those who are involved in violent recrimination are responsible for their actions - but I would argue that the state also has a responsibility not to do something, like execute Molla, if it could result in significant numbers of innocent people dying.

Any thoughts anyone?

12.53 pm: The written order?
After the order was read out the Attorney General got to his feet and asked whether they could issue a short order'. According to lawyers close to the judge's bench, Justice Sinha said, 'No short order is required as it was dismissed without observations'. And the chief justice then said that 'the order would be communicated to the jail authorities according to law'

I spoke to Abdur Razzak a few minutes after the order and he said that he was trying to understand the implications. 'The judges did not say that they were going to issue a short order'

The Attorney General, said that no short order was required.

There is a stay of execution, imposed by an order of the court. In order for the stay order to be vacacted, there needs to be an order written and given to the jail authorities.

12.47 pm: The court order
The chief justice simply read out the following order: 'Both Review petitions, 17 and 18 are dismissed.' There were no observations.

Breaking: Defence applications dismissed

11.55 am: Court adjourns again 'for a few mins'

11.52 am: Razzaq makes further argument that by law, sentence can only be changed if 'manifestly inadequate and unduly lenient' but that appellate division judgment only says life imprisonment sentence imposed by tribunal was 'inadequate'. Attorney General not seek to respond to that point. 

Why does AG not respond on that point? 

11.10 am: in summary defence argued that court made apparent error on face of record when not allow statement, which Momena, the sole witness in death penalty charge, had given to investigation officer, to be taken into account by court.

In that statement to IO, Momena did not mention that Molla was present at scene when family murder took place.

Also argued that court has powers 'for total justice' to consider whether jail code should apply, and that execution warrant defective.

11.02 am: Court adjourns after hearing defence and government arguments. Starting again at 11.30 am, where Defence given opportunity to provide ten mins summary of arguments.

9.40 pm: Maintainability allowed
Breaking news: appellate division agrees that Defence review application can be heard by court. Now Defence arguing on merits

8.50 am: What will happen today in court
The appellate court hearing will continue this morning, from around 9.30am, with the chief defence lawyer, Abdur Razak continuing his arguments as to why the court should consider its review of the appellate division judgement (see below, 7.20 pm, Tuesday).

If he is successful, the court will hear the merits of the arguments - probably straight away. (It is also possible that the court may hear the substantive arguments about review before deciding on whether the application was in fact maintainable)

I understand that the defence will be filing or have filed an 'additional paper book' in which it will raise additional issues. These deal with additional matters supporting its review application, and also  arguments, that are outside the purview of the review - that the warrant of execution was faulty and the jail code should apply to Molla

The issues about the warrant of execution and the jail code are not issues that are before the court as part of its application for review - however, the defence are likely to be hoping that if the review is found not to be 'maintainable' in court or is refused on merits, the court will take into account its arguments about the warrant of execution and the jail code.

The impact of the alleged defective warrant and the jail code are not in any way to bring the execution to an end - but to delay when it might take place.

The defence arguments about the warrant of execution are set out here in an earlier post

The arguments about the jail code relate to (a) whether it applies or not to Molla or (b) if so, whether it is the old code or the amended. The amended code - which apparently the prison authorities are saying has not been 'approved' - provides 15 days (rather than 7) for the time in which a person can seek presidential pardon.

Today is the last day of the appellate division before it goes on winter holidays until the beginning of January. So it is very significant. If the arguments are not completed by the end of the day, Molla will have at least a reprieve until 2 January 2014 when court reopens.


10.59 pm: The V-sign?
Another somewhat amusing aside, amongst what is obviously a very serious business, are the pictures of Molla's wife yesterday going to prison. It was, supposedly, Quader Molla's 'victory sign' after he received his sentence of life imprisonment that infuriated so many people, and partly triggered off Shahbag protests - which led to the government changing the law on appeal of sentence, which led to the death penalty. That picture has become slightly iconic here in Bangladesh.

His wife yesterday, perhaps trying to do a victory sign to emulate her husband put up a backwards victory sign - known to all those who have lived in England as a F--- O--- sign. It is of course possible that this is what she really meant to say to the waiting photographers!

10.55 pm: How some papers got it very wrong
My colleagues at New Age told me this evening that a lot of Bangla language papers were caught out by Molla's sudden reprieve yesterday. Their first editions, which are sent to districts around the country, were completed by about ten at night and had banner headlines, 'Molla Executed'

9.00 pm: It could have been rather different
Somewhat intrigued by the apparent failure of the attorney general to pick up his phone to defence lawyer's calls on Tuesday night (see 8.50pm below). Things could be very different now if he had argued his case at the chamber judge's house - which would have been the same arguments he used in court today.

8.50 pm: More on Defence Stay application, Attorney General's absence etc
Some clarification about yesterday's application for a stay of execution. A number of points are now clear having seen the defence application for a stay, the government application seeking a vacation of the stay, and also talking to defence lawyers.

(a) When the defence lawyers went to the chamber judge's house, they had two petitions with them. An application seeking a review of the apellate division's judgement which imposed the death penalty on Molla and an application seeking a stay of proceedings/execution. Both applications were filed with the chamber judge.

(b) according to the defence lawyers, the chamber judge told the defence lawyers to serve the application for a stay with the attorney general. They said that they phoned the attorney general a few times but there was no answer, and also went to his house. They then returned to the chamber judge who heard the matter ex parte (i.e without the government side present).

(c) the stay application was focused tightly on the defence's right to seek a review of the appellate division's judgement (and not on whether the jail code applies or the warrant of arrest was defetive (as I wrote at 11.45pm, Tuesday). The operational paragrpahs of the stay application are:
6. That there being errors apparent on the face of the record in the Judgment and Order dated 17th September 2013 passed by this Hon’ble Court in Criminal Appeal No. 24 of 2013, there are good grounds for filing the Review Petition and there is every possibility of success of the said Review Petition. In such circumstances, the Petitioner applies for stay of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.

7. That it is submitted that the life sentence awarded by ICT-2 in respect of Charge No. 6 has been enhanced to a death penalty on appeal by the Government to this Hon’ble Court. As such if the judgment passed by this Hon’ble Court enhancing the life sentence in respect of Charge No. 6 to a death penalty is not stayed by this Hon’ble Court, the same may be executed by the Government, in which case, the instant Review Petition will become infructuous. As such, the Petitioner prays for stay of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.

8. That it is specifically stated that on 8th December 2013, a copy of the judgment of the Hon’ble Appellate Division dated 17th September 2013 was transmitted to the ICT-2. On the same day, i.e., 8th December 2013, the ICT-2 issued a Warrant of Execution on the basis of the aforesaid judgment of the Appellate Division, which was immediately thereafter sent to Dhaka Central Jail. The Petitioner’s lawyers have made enquiries with the Jail authorities and have obtained specific information that the Jail authorities are taking steps to execute the death penalty awarded against the Petitioner on the basis of the aforesaid Warrant of Execution. ....

10. .... . As such, there is a real risk that the Petitioner may be executed at any time by the jail authorities. In such circumstances, the Petitioner prays for stay of the judgment of the Appellate Division dated 17th September 2013 pending disposal of the instant Review Petition.

11. That it is submitted that if the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 is stayed by this Hon’ble Court till disposal of the instant Review Petition, no party will be prejudiced. On the other hand, if the said judgment in Criminal Appeal No. 24 of 2013 is not stayed by this Hon’ble Court, the death penalty awarded by this Hon’ble Court in respect of Charge No. 6 may be executed and the Petitioner will suffer irreparable loss and injury. As such, the Petitioner prays for stay operation of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.
(d) the government's key arguments in its written application seeking a vacation of the stay application is that the application of the review application is not maintainable as Molla has no right to a review. The key paragraph in its short application is
(5) That since as per Article 47(A)(a) of the Constitution of  Bangladesh the War Criminals has no constitutional right to file any application before the Supreme Court of Bangladesh and thus the order of stay is liable to be set-aside 
(see below for government and defence arguments in court)

7.20 pm: Defence arguments in court today
[Apologies for the long break but had to go to the UN Asst Gen Sec press conference, about which I will come to later.]

Abdur Razzak, for the defense, argued that the appellate division did have jurisdiction to hear a review application against the death penalty sentence that the court itself imposed. The key sections/article are set out in the text below when discussing the government's argument so I shall not set them out again.

He first of all made the following arguments about Section 21, 24 and 26 of the ICT, the sections raised by the Attorney General. Razzak agreed that the ICT only allowed appeal against sentence and for no other reason. He said that these sections did not help the government's argument, as what is being discussed today is a review of the appellate division decision, not the tribunal decision. In response to a suggestion by Justice Sinha that the tribunal decision runs along with the appeal, Razzak disagreed and stated that the review issue is solely about a decision made by the appellate divsion for death - a decision that was not made by the tribunal. So in summary, he said that these sections of the ICT do not provide any bar to the defence from seeking a review

He then moved onto the Constitution. He said that first of all he wanted to mention that Article 47 of the constitution is contained in part 3 of the constitution which deals with fundamental rights.

He then referred to section 47(3) and said that what this article did was to prevent any part of the ICT Act from being challenged as unconstitutional - and it was therefore not relevant to the matter in hand. In response to the questions of Justice Sinha, he said that the words 'no law nor any provision thereof providing for detention, prosecution or punishment of any person' did not mean that the issues of 'sentence' could not be challenged, only that 'laws .. providing for ... punishment' could not be challenged.

He then referred to 47(A)(1) which he said was a specific provision by which three fundamental rights were stopped from applying to someone like Molla. He went through each in turn and explained how they would have been relevant to the trial of those accused at the International Crimes Tribunal. He said, if the framers of the constitution intended to bar those sentenced of war crimes from using article 105, then they would have stated it explicitly. 'Article 105 has nothing to do with article 47(3) or 47(A)

He then referred to Article 47(A)(2) and said that article 105 was not a 'remedy' it was a 'power' provided by the constitution to the appellate division. He pointed to the fact that article 105 was in part 6 of the constitution - in the judiciary sectionand not in the part of the constitution dealing with fundamental rights.

Following questioning by the bench, he argued that article 105 - which gave the Appellate Division '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' - applied as the ICT Act did not contain any sections that precluded the article's application.

He then moved onto discuss a Bangladesh case which he said showed that the appellate division has inherent powers of revision which not even the constitution can take away. 'Even if the constitution is suspended, the appellate division would still have these powers,' he said.

It was at this point that the court adjourned the matter.

4.30 pm: Attorney General's arguments in court today
Here are a summary of the arguments made by the Attorney General (AG)who was arguing that the appellate divsion had no jurisdiction to hear a review application made by Molla's defence lawyers.The AG first referred to three sections of the International Crimes (Tribunal) Act 1973 (ICT) .
Section 21 is about sentence:
(1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence.
(2) The Government or the complainant or the informant, as the case may be, may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal or an order of sentence.
(3) An appeal under sub-section (1) or (2) shall be preferred within 30 (thirty) days from the date of conviction and sentence, or acquittal or any sentence, and no appeal shall lie after the expiry of the aforesaid period.
(4) The appeal shall be disposed of within 60 (sixty) days from the date of its filing.
(5) At the time of filing the appeal, the appellant shall submit all documents as may be relied upon by him.
Then he referred to section 26 which confirms the precedence of this law if there are inconsistencies with any another law
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 24 which precludes an appeal from any order, judgement or sentence of a Tribunal, other than appeal relating to sentence.
No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever except in the manner provided in section 21.
He then moved onto article 47(3) of the constitution
Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or any individual, group of individuals or organisation or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provisions of this Constitution.
And then article 47A (1) and (2), which were brought in by the first amendment of the constiution in 1973
(1) The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.
(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.
The Attorney General's basic argument was that the ICT Act provides the limits to the appeal that is allowed by a convicted person under the Act, and that  47A(2) specifically bars an accused, falling within Article 47(3) from moving 'the Supreme Court for any of the remedies under this Constitution.'
He then said that article 105, which is the provision under which this review is being sought is a constitutional remedy - and therefore the accused is barred from seeking it.

Please note it will be easier to understand the Attorney General's arguments when read in the context of the defence arguments (see above)

3.15 pm: Fire at Sinha's house
Earlier today it has been reported that some people set fire to Justice Sinha's house in his home village in Moulvibazaar. Sinha was the judge that gave the majority opinion in the appellate division judgment that imposed the death penalty on Molla. He is also on the same bench dealing with the review. Not clear from reports how much damage done to the house. It goes without saying that this is avery worrying development

3.00 pm: Review, not an appeal
Before sumarising the legal arguments made in court, it is important to note a few things about the 'review' by the appellate division (assuming that the defence actually wins maintainability. Some key points are:
- there are very limited grounds that can allow a review be successful - there has to be an 'error apparent on the face of the record' which in case law is drawn very narrowly.
- it is not an appeal. It is heard by the same bench of judges that made the order which is in question. So the applicant is asking the same set of judges to accept that they made a serious error! As one cam imagine, successful appellate division reviews are as a result very uncommon. The International Crimes Tribunal gave itself the power of review (though it had much wider discretion than the appellate division to reverse its decision) and although it dealt with dozens and dozesn of application for review, I am not aware of a single one that it overturned.

Here is the constitutional provision dealing with the review and the supreme court rules relating to the procedure. Article 105 provides sets out the power of the appellate division to review its judgment. This Article states:

The Appellate Division shall have 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. Order 26 of the Appellate Division rules sets out the procedure for this.

1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record. (emphasis added)

2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed. The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.

3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.

4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.

5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.

6. Except with the special leave of the Court, no application for review shaH be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.

7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed. (emphasis added)

8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.

9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed.
1.46 pm: Kerry speaks to Hasina
US embassy has confirmed to me that 'Secretary Kerry spoke with Sheikh Hasina today about current events in Bangladesh.' No further details have been provided. The embassy also provided me the following points on US's position about the trials - which suggests that Molla was discussed.
'On the ICT case question,
- As we said at the time of the first verdict in Bangladesh’s International Crimes Tribunal (ICT), the United States supports bringing to justice those who committed atrocities in the 1971 war.

- We believe that the trials should be fair and transparent, and in accordance with international standards Bangladesh has agreed to uphold through its ratification of international agreements, including the International Covenant on Civil and Political Rights.

-As Ambassador-at-Large Stephen Rapp, Office of Global Criminal Justice, said during a  press interview earlier this year: countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees.

- Before any sentence is carried out, it is essential that the process itself stands up to international standards.'
1.40 pm: Court hearing adjourned
So Molla lives at least another day .... as the Appellate Division adjourned the arguments at 1.05 today on whether the appellate division had jurisdiction to hear an application seeking a review of the appellate division judgment imposing a death penalty on the Jammat leader.

The Attorney General Mahbubey Alam argued first that section 21, 24 and 16 of the International Crimes Tribunal Act 1973, and article 47 of the constitution barred the possibility of the court hearing a review application. Abdur Razzak, on behalf of the defence, then responded, and the court was adjourned in the middle of his arguments in which he argued that article 47 was no bar. I will post a summary of the legal arguments a little later.

Note that these are arguments on whether to hear the review, not on the merits of the review application.

1.07 pm: Court adjourned until tomorrow morning as arguments on maintainability continue

11.20 am: AG meets CJ?
Apparently a number of TV stations reported last night that Attorney General met the Chief Justice in early hours this am, at around 1am. In court this am the Chief Justice rebuked journalists from reporting this, saying it was not true.

Clearly if that was true, that would be a rather serious issue.

11.15 am: Kerry call
Have heard that call between US Secretary of State and prime minister about Molla execution did definitely take place this morning. Don't know any further details.

11.10 am: Revision application filing issue
Just to clarify issue about filing of review of app division judgment. The Defence had, until they sought a stay, not filed a review application but they filed it along with their stay application to the chambers judge, so say Defence lawyers. Apparently only recieved full set of certified copies of judgments yesterday afternoon.

11.00 am: Court to hear review maintainability issue
So first court will decide issue of 'maintainability' of review application - the government argues that court has no authority to hear matter. If defence successful, then court will hear merits of review application. If court rules that not maintainable, then according to Defence lawyers they will argue stay on basis of jail code, and also defectiveness of warrant of execution. (See 9.07 pm)

10.50 am: Defence lawyers plead vociferously that matter should be adjourned until 2 January (after court holidays) but court having none of it. 

10.47 am: App Div court adjourns to 11.30 (50 min time) to hear arguments whether a review application before the appellate division is 'maintainable' or not

9.10: am: Kerry calls Hasina?
I can't confirm this but I have been informed that US Secretary of State John Kerry planned to speak to Sheikh Hasina at Bangladesh time (i.e that would have been ten minutes ago) apparently stressing how 'execution could derail election process'.

9.05 am: UN calls for halt
During the night, the UN issued a press release stating that:
'UN High Commissioner for Human Rights Navi Pillay on Tuesday called for an eleventh-hour stay of execution for Abdul Quader Mollah, a Bangladeshi politician convicted of war crimes in a trial that did not meet stringent international standards for imposition of the death penalty.'
It goes on:
The Office of the High Commissioner for Human Rights has written to the Prime Minister of Bangladesh, HE Sheikh Hasina, in a last-minute appeal to halt the execution.

In a statement last month, the High Commissioner urged the Government of Bangladesh not to proceed with the death penalty in cases before the International Crimes Tribunal, particularly given concerns about the fairness of the trials.

The United Nations opposes the imposition of the death penalty under any circumstance, even for the most serious international crimes.

Two UN Special Rapporteurs, on the independence of judges and lawyers, and on summary executions, have also called for the execution to be stayed.
9.00 am: Defence lawyers say that the legal hearing in the appellate division could start at 9.30 am


12.10 am: Well unless there are some further remarkable events tonight, that is it from me. Until another eventful day tomorrow, of course. To find out when next posting on this blog, or next live blogging, follow me on twitter: @davidbangladesh or 'follow' the blog Good night from Dhaka.

12.05 am: The Dhaka jail superintendant tells New Age that he has received a copy of the handwritten order and the execution has been stayed

12.00 pm: I am somewhat surprised that the Attorney General did not hotfoot over to the chamber judge and argue against a stay of execution. There may be a reasonable explanation for this but dont know what this is right now.

11.48 pm: I just spoke to Abdur Razzak, the chief defence lawyer. He said: 
'We are now in central jail. the court office is now closed so we cant have certified copy, so we have taken the clerk's assistant, Mr Islamuddin, who has personally accompanied us with court file, to show the jailer the hand written order which is signed by Justice Hossain'
In terms of the legal arguments that they made, Razzaq said that they were the following: 
'Our aguments were that we have filed review petitions before the appellate division this evening, and these are pending, and that the jail code applies, so Molla cannot be executed before 21 days have passed and have 15 days to decide whether to make mercy petition, and that the warrant of execution was defective'
 He said that the application was 'ex-parte' - that is to say that there were no lawyer present representing the government - though apparently the defence did try to serve the stay application on the attorney general's office. Present along with Razzak was Khondaker Mahbub

11.25 pm: At 7.05 pm, below, I set out the key weakness in the particular allegation upon which Molla was convicted and then subsequently received the death penalty. I shall be writing a seperate article on what the appellate division said about the issues set out there, but can I encourage those interested to read these articles below which sets out why there is so much legitimate concern about Molla being hanged in relation to this particular charge
Sole witness in Molla death case gave contradictory statements 
Unreliability of witness is reason alone why Molla should not hang 
Are the tribunal's justified in restricting defence witness numbers
11.08 pm: Another interesting omission in terms of last minute statements was from the UN. It has produced a statement yesterday from two special rapporteurs, but surely you would have expected the UN High Commissioner for Human Rights Navi Pillay to make an urgent request for halting the execution

11.06 pm: Statement from UK (8.44pm), statement from EU (9.50pm), but no statement from the US. Very odd, particularly since Ambassador Rapp made a call this morning to Shafiq Ahmed, the former law minister and now legal advisor to the prime minister, who made a number of apparent commitments to Rapp including that Molla's lawyers would be able to seek a review of the appellate division judgment. (see 7.20pm)

10.46 pm: Can there be any other suprises in store with this International Crimes Tribunal. Believe me there has been everything; abducted defence witnesses, secret skype tapes, alleged procured witnesses, violent and fatal attacks on prosecution witnesses ... and I have missed out lots. Enough already!

10.36 pm: Inspector General of Prisons says that he has yet to receive any order from the court to stay the execution. Well he has 1.5 hours to get it, but knowing how long its takes courts to ready their orders, that is not a long time! But news now breaking everywhere

10.22 pm: Chamber court, Justice Syed Mahmud Hossain orders stay of execution till 10.30am when full bench will hear stay application, Tajul Islam, a defence lawyer,  tells New Age

9.56 pm: Am told that we should hear very soon about last minute attempt by Defence lawyers seeking a stay of execution

9.50 pm: The EU Heads of Mission in Dhaka has published a statement on the Quader Molla hanging (see 8.44 for UK government's statement). It calls for halting the execution, and states that the EU 'notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.'
The European Union reiterates its opposition to the death penalty
The European Union is opposed to the use of capital punishment in all cases and under all circumstances, and has consistently called for its universal abolition. The European Union has followed the judicial proceedings in Bangladesh concerning the crimes committed during the war preceding the independence of Bangladesh in 1971. From the start of the trials, the European Union has repeatedly stressed its concern about the possible application of the death penalty under the International Crimes (Tribunals) Act.

The case of Mr. Abdul Quader Mollah has now reached a stage where an execution of the death sentence given by the Supreme Court on 17th September could be imminent. The European Union notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.

In this context the EU reiterates its position regarding the recent death penalties issued by the International Crimes Tribunal and the Supreme Court as well as the 152 death sentences that were recently handed down in the trial following the BDR mutiny in 2009. The European Union calls on the Bangladeshi authorities to commute these sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment
9.40 pm: Quader Molla's family was allowed to stay for 30 minutes inside the jail speaking to Molla. The son said afterwards that his father said that it was a 'political killing' due to the fact that he was involved in 'islamic politics'

9.27 pm:  So, the Chamber Judge whom the defence lawyers have gone to see is Justice Syed Mahmud Hossain. He was, can you believe it, one of the five judges sitting on the appellate division bench hearing the appeal against Molla, and one of the four who agreed with the death penalty. All he said in the judgement was:
'I have gone through the judgements to be delivered by my learned brothers, Surendra Kumar Sinha, J, my learned bporther Mr Abdul Waham Miah, J [who dissented] and my learned brother ANM Shamsuddin Choudhury, J. I agree with the judgment of my learned brother Sinha J.'
Sinha gave the majority judgment

9.11 pm: Person in contact with defence lawyers says that apparently 'Molla is not seeking clemency'.

9.07 pm: Likely immediate legal issue that defence lawyers will raise with appellate division judges is legality of the warrant of execution - they already sent a notice to the prosecutors on this issue as part of informing them that they were about to file a review application. I have written about the claim that the warrant of execution is defective here.

By the way, fact that defence lawyers have sent a notice to prosecutors informing them that they were about to file a review shows how dishonest the state minister for law is (see 8.20)  when he said that he was surprised that the lawyers had not yet filed a review. The lawyers should in principle have a month to file application according to the appellate division rules

8.50 pm: The defence have sent out two legal teams seeking a stay of execution. One to the chambers judge and one to the chief justice. The judge in chambers has apparently asked for the Attorney General to attend.

8.44 pm The UK government's Senior Foreign Office Minister, Baroness Warsi has issued a statement.  It reads:
“I am deeply concerned at reports of plans to execute Abdul Qader Mollah in the coming days.
“The UK opposes the death penalty in all circumstances as a matter of principle. We consider that its use undermines human dignity and that there is no conclusive evidence of its deterrent value. We further note that Abdul Qader Mollah was sentenced to death following an appeal permitted under retrospectively applied legislation, and that he was not permitted to review his sentence before the Supreme Court. Bangladesh’s commitments under the International Covenant on Civil and Political Rights (ICCPR) require that all citizens be treated equally before the law.
“The UK calls again for Bangladesh to implement a moratorium on the death penalty leading to the eventual abolition of the death penalty.”
The toughest statement so far from the UK government, who in public have been very reluctant to say very much on this issue

8.35 pm. Inspector General of Prisons says that five hangmen are ready and prepared in Dhaka Central Jail

8.30 pm: Molla's defence lawyers are on the way or about to be on their way to the Chief Justice's house seeking a stay of execution. My view: highly unlikely that something will come of this. (if I said why, could be in contempt of court!)

8.20 pm: More detail on what Quamrul Islam said at the press conference (see 7.55). He said that Molla was offered to seek clemency before two magistrates and he did not do so. Also said that Molla had not sought a review before the chambers judge of the appellate division in the last three days as he thought that he would, though at the same time saying he did not think Molla had the right to make such an application.

Main reason why Molla's lawyers not filed the review application, according to the lawyers,  is that they needed copy of the certified copy of the judgment and had not been provided these!

8.00 pm: An alternative explanation (see 6.55 and 7.40) of why Molla is being executed has been given to me by one diplomat.  The first signs of a dialogue are starting - not yet close to an agreement - and the government might want to put the BNP into a difficult position. Either the BNP could side with Jamaat and be outraged with the execution and come out of the talks - and then the Al government says, well we told you so, the BNP don't really want dialogue. Or the BNP continues with dialogue and there are strains in relationship with the Jamaat.

7.55 pm: Some plain speaking. There is absolutely no way that the state minister for law can say that all legal options exhausted (see 7:46). The government cannot claim that the defence had no right to a review - that was for the court to decide (see 7.40), and of course Shafique Ahmed told Ambassador Rapp (see 7.20) that Molla had a right to seek review. In addition, only this morning government officers were saying that the jail code did apply and that Molla had seven days to decide whether to seek clemency. The level of disingenuousness here is quite remarkable

7.46 pm: State minister for law, Quamrul Islam tells media that all legal options for Molla were 'exhausted', and that Molla could have sought mercy but did not take opportunity though he was offered it.

7.42 pm: Family of Quader Molla, now waiting outside jail gate

7.40 pm: Some people are not convinced by explanation at 6.55pm - and argue that political deal is unlikely. It could be because the government wanted to avoid various legal complications that could delay the process. There are three issues: (a) defence lawyer arguments that warrant of execution is defective. (b) application to the appellate division for a review of the appellate court's own order. Whilst this was unlikely ever to succeed, the appellate division bench is going on holiday at the end of the week. (c) the defence may have tried to argue that not only jail code applied, but the amended ones applied which give 15 days for a mercy petition.

7.25 pm: State minister for home affairs has confirmed that execution of Molla will take place at 12.01 am

7.20 pm: At today I spoke to Shafique Ahmed the former law minister and currently adviser to the prime minister and he confirmed that he had spoken to Stephen J Rapp the US Ambassador-at-Large who heads the office of global justice. Shafique Ahmed told me that he had told Rapp that he was ‘no longer in charge and was just an adviser to the prime minister.’

‘Rapp expressed his [concerns], and I told him that I would try to convey them to the correct authorities,’ he said. 'I told him that all due processes will be maintained, and that Molla could seek clemency from the president under the constitutional provision. This right is available to everyone,’ he said. Shafique was apparently referring to article 49 of the constitution which states that, ‘The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.’ He also said that Molla would have the right to go seek a review of the appellate divisions judgment.

It appears that the government may well break these two apparent commitments if Molla is in fact hung tonight.

7.15 pm: A colleague spoke to the Inspector General of Police earlier this evening and was told that 'everything was ready for the execution', but did not say when it would take place

7.05 pm: It is important to remember the following: the case on which Molla is being hung involves the murder of six members of one family.
There was only one witness to the incident, a daughter of the family who was the sole survivor. She was 13 years at the time. In her testimony in court, she said that on 26 March 1971 her father ran towards the house and said “Qader Molla will kill me” and that Quader Molla pulled her father by the collar, and draged him out of the house, The men then killed her mother, three sisters (one of whom was first raped) and baby brother. 
After the incident, she said, ‘A person called Kamal Khan who served tea to freedom fighters told me, “Quader Molla killed my parents.” My Ukil Baba [marriage witness] Akkas Molla also told me the same thing ...’
There are significant weakenesses about the evidence given by Momena, now aged about 55 - she had given two previous statements which contradicted her testimony in court .

The first statement was given on September 28, 2007 – five years before she she testified in court - when she was interviewed by a researcher, working at Jallad Khana, the annexe of the Liberation War Museum at Mirpur.

In the statement, there is no mention of Molla.  ‘Biharis surrounded [Momena’s father’s house] house and took [her father] away,’ the statement reads. 
 It also states that Momena had told the researcher that she was not present during the incident: ‘Because the elder daughter of Hazrat Ali, Momena Begum, left for her father-in-law’s house two days earlier, she remained alive.’

The statement went on: ‘After a few days, the elder daughter of Hazrat Ali, Momena Begum, came to know everything about what happened but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.’
The second inconsistent account given by Momena was to Mohana Begum, the deputy investigating officer assigned to investigate the case against Molla.
 Whilst in this statement, Momena said that on March 26, 1971, she was in the house when her family was killed, there is, again, no mention of Molla’s presence.

Instead, Momena told the investigation officer, as she had previously told the museum researcher, that the men who came ‘were Biharis. They entered along with the Pakistani soldiers.’ 
 In fact, Momena specifically told the officer that one person was present. ‘I know all the Biharis. Aktar Gunda was with them. He was known as a gunda (criminal) in our locality,’ she stated. 

Molla’s name is mentioned twice in the investigation officer’s report. 
Momena is quoted as saying: ‘When the war broke out, [Akter Gunda] joined with Quader Molla of Duaripara and started to kill people in Mirpur’ and subsequently, ‘I heard about Quader Molla and Aktar Gunda and their force from people around.’ 
 However, the statement contains no allegation that Molla was present at the time of this offence.
To read more about this see,
Sole witness in Molla death case gave contradictory statements 
Unreliability of witness is reason alone why Molla should not hang 
6.55: How to explain what is going on? One explanation is that the sudden turn around (earlier this morning there was talk of 7 days period for Molla to consider clemency application (see below) is an indication of progress on a possible deal brokered by the UN Assist Sec Gen currently in Dhaka concerning an election time government. Perhaps the government realises that it may soon be losing executive power and so it needs to execute Molla whilst it has control of the state apparatus?

6.50pm: We will all know more soon as the state minister of law, Quamrul Islam has asked journalists to come to his house for a press conference. Must be about Molla

6.30pm: About an hour ago, Quader Molla's wife was hand delivered a letter asking that the family go to Dhaka Central Jail. This is usually an indication that the execution will take place. This is a reversal of the situation this morning where government officials had said that Molla would be given seven days to decide whether or not to seek presidential pardon. Of course, this morning's position was a reversal of yesterday's position which was that the jail code did not apply at all!