Tuesday, September 17, 2013

Quader Mollah appeal, day 16: Defence arguments

19 May 2013
To see previous day's proceedings

Razzaq went to dais and referred to the continental shelf case (Libya vs Malta) where the issue was whether their sea-line would be decided on the basis of ‘equitable principle’ or ‘equidistance principle’. Razzaq submitted that the main issue was whether case would be decided on the basis of customary international law or not. He further submitted to be considered as customary international law there must be 2 things- (i) practice and (ii) opinio juris and he referred the book of Brownlie, 5th ed. (1999) in support of his submission. S Chowdhury J. argued there are 3 elements and the additional and the first one is the ‘general acceptance’.

Razzaq then moved to the next case i.e. Nicaragua case, another famous case in the area of customary international law. He argued, in this case the court decided on the basis of customary international law rather on the basis of the above mentioned Continental Shelf case which can be found at paragraph 183 of the judgement.

He then readout the definition of ‘international customary law’ from page 4 of the book of Brownlie and he also referred the Article 34 of the Statute of the International Court of Justice. He then submitted that the Nuremberg trial followed the customary international law to administer the trials of the accused war criminals. He referred a case where 2 citizens of Estonia were accused of crime against humanity as they deported civilian population to Russia which was a crime under the Nuremberg agreement (page 18, last paragraph) which was confirmed by UN resolution as per his submission.

After that Razzaq then referred to a report by the International Law Commission. He further submitted that we have adopted some of the provisions of the UDHR. At this point S Chowdhury J. asked him, “How this letter (declaring the detention of Abdul Quader Molla illegal by one of the unit of UN) is a customary international law?” Razzaq replied, “My lord, give me 2 minutes and I shall explain it to you. They (a unit of UN) have said that Abdul Quader Molla’s detention was not inconformity with UDHR and ICCPR (both are customary international law).” However, CJ, Chowdhury J. and Sinha J. disagreed with this submission by Razzaq.

Razzaq then moved to national court decision in this regard. He submitted, “My lord now I shall refer you to two decisions of your lordships. It has been decided by the Appellate Division that ‘International law incorporated in the constitution has binding force’ and ‘international law not inconsistent with the provisions of the constitution has a persuasive force’.” Mahmood J. asked him, “Where are your references? Is that Ershad’s (case regarding the passport matter of ex-martial law administrator/ex- president of Bangladesh General Hussain Mohammad Ershad) case?” Razzaq replied, “Yes my lord and the reference is 21 BLD (AD) 69.” 

He read out 2nd paragraph of page 69 of the said case, “If the domestic law is not clear and is inconsistence with international law then the domestic court is obliged to respect international law.” Razzaq then referred the 2nd case which was regarding the child custody of the aforesaid ex-president of Bangladesh Hussain Muhammad Ershad and the reference is 17 BLC (AD) 77. Razzaq read out paragraph 17 of the decision before the court. Chowdhury J. and Sinha J. disagreed with this submission as the facts of none of the case have a connection with the present case but Razzaq submitted that he mentioned those case just establish applicability and the scope of the international law by our domestic court. Chowdhury J. tried to argue further but the CJ asked Razzaq to proceed.

Razzaq then moved to the evidence by PW1 at page 347 of part 2. 

As soon as he started, Wahab J. told him, “Khondoker Mahbub Hossain (the lead counsel in this case) has already shown this and we have marked it in our copy. You told us that you will submit only on law point but now you are moving to facts.” Razzaq insisted, “My lords, please see only one line of the cross examination at page 348 where the PW-1 deposed, ‘I saw him standing in front of Mohammadpur Physical Training Centre’ and we further asked him, ‘have you seen him on your own eyes (meant whether he seen directly?’. My lords, how it can be crime against humanity which requires the elements: attack on civilian, plan and policy, attack must be systematic, attack must be wide spreads etc?” 

Chowdhury J. tried to differ with this argument but the CJ asked Razzaq to continue. CJ further asked him, “what is your next submission?” Razzaq referred to PW-7 testimony at page 387 and started to read out. CJ stopped him and said, “Mr Razzaq you are repeating. Do you want to see (I have already marked in my copy)?

Razzaq then moved to the findings about PW-1 by the tribunal and started to read out. However, Wahab J. stopped him, showed that referred part has already marked him and said, “We have already marked this part. You told us that Khondoker Mahbub Hossain has made his submission on facts and you are going to make your submission on law point only. Razzaq agreed saying that, “OK, my lord. I shall just read that and then move to my next point.”

Razzaq then referred to an Indian case [AIR (1938) (Privy Council) 227] and moved to the relevant part (page 229, right side last paragraph) and read that out. The Bench was in the opinion “that is an established principle and no one disputes that.” The CJ added, “You have gone too far Mr Razzaq. We have decision regarding that.” Razzaq replied, “My lord, it is a Privy Council decision that’s why I have referred that.”

Razzaq then referred Bangladeshi cases in relation to same issue. He first referred a case from 39 DLR (AD) 166 and started to read out the relevant paragraph 22. But CJ stopped him and said, “There is no dispute about this. Please move to your next citation.” Razzaq then cited 2 cases- firstly, 15 DLR (AD) 60 and said that the relevant paragraph is 20. He then cited the second case and the reference is 3 DLR (FC) 37. I.

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