Tuesday, September 17, 2013

Quader Mollah appeal, day 9: Defence response

29 April 2013
To see previous day's hearings

The Attorney General and prosecutor of ICT Tureen Afroz were present to represent the state. On the other hand, Khondokar Mahbub Hossain, Abdur Razzaq along with their 5/6 associates and juniors were there to represent the respondent Abdul Quader Mollah in the appeal No. 24/2013.

The AG went to the dais and he referred and readout several articles of the constitution. He mainly argued, “No new sentence has been created, no new liability has been created; only a new forum has been created for the accused/victim to raise their grievance. 

A counter argument came before the court, “Victim has not come before the court, the state has come.” 

Another issue came before the court that, the judgement was pronounced on 5th February 2013 and the amendment was passed and came into force on 18th February 2013 - whether such a post-judgement enactment is applicable to the respondent. Before, the started his argument Mr Justice Wahab Miah asked the AG, “Is your appeal against the ‘judgement of sentence’ or ‘judgment of acquittal’?” 

The AG replied, “Against the sentence my lord.” In response to that Justice Wahab Miah asked him, “Then why have made your submission against acquittal (on the last day)?"

Justice Mahmood also reminded AG that in CrPC 1898 the provision for appeal is dealt by 2 separate sections, 407 (acquittal) and 407A (improper judgement). 

Fristly, the AG argued, “Not only about the ICT Act but also in other cases, the constitution has similar provisions e.g. Art. 7B and 26 (3) of the constitution. (He readout both of the articles) Then he submitted, “Your lordship can kindly see Art. 35 of the constitution. Art. 35 does not say anything like that; “death sentence was already there; nothing new. No new sentence has been introduced.” The CJ then said, “So your submission is death penalty was there already; nothing new has been imposed by the amendment, right?” The AG replied, “Yes, my lord.”

Justice Sinha then asked the AG, “What about section 6 of the General Clauses Act? What is your submission about that?” The AG replied, “My lord, the Constitution is the Supreme law of the country and the General Clauses Act is the subordinate law.” However, in response to that Mr Justice Wahab Miah told to the AG, “Mr AG kindly see Art. 152 of the Constitution. It has been clearly stated in the sub article 2 of article 152 that General Clauses Act of 1897 is applicable to any Act of Parliament.” In reply to that the AG said, “In that case your lordships can kindly read Art. 47 sub-article 3 of the Constitution with me.” (He readout the sub-article which basically says any Act relating to try an offence of genocide, crimes against humanity and offence war crime and other international law if become inconsistence or contradictory with any provisions of the constitution cannot be considered void or illegal). He further argued, “Therefore, even if the death were not there, the death sentence could be imposed under the provision of this Art. 47 (3). And here the provision for appeal was already there.”

The AG then argued, “It is a protected law. By article 47 (3), the ICT Act is protected by the Constitution. It cannot be challenged. So, what cannot be done directly, cannot be done indirectly. Therefore, any action taken under this law cannot be challenged.” In response to that submission, justice Wahab said, “Look, art. 47 came into force in 1973 and it has been ended with the pronouncement of the judgement.” The AG replied, “my lord, the legislature was so sincere that at first they amended the constitution and then they changed the law.”

AG then referred a 12-part book written by Muntasir Mamun in respect of the history of independence war and genocide by rajakars. [Justice Sinha reminded him that in the Appellate Division if any counsel relies on any document, he needs to provide one copy for each judge. The AG then replied, “I have to buy 6 sets of that book then. It will be expensive. Anyway, I shall buy those for your lordship.] The CJ said, “We do not dispute about the history.”

Mr Justice Mahmood then  asked the AG, “the Act government enacted in 1973, what was the purpose of that Act?” He then asked the AG to read the long title of the ICT Act of 1973. The AG readout accordingly. The Mr Justice Moahood suggested, as this law is not for any particular period of time, therefore, it is a general law; not a special one.

Justice Sinha then pointed out another issue. He asked AG to readout their ‘purpose of appeal’ from page 2 of their written submission. The AG readout accordingly which implied that they have appealed against inadequate sentence awarded by the Tribunal; not against the acquittal. Justice Sinha spotted it as a defect and suggested they could remove the defect by simply stating that the appeal is “against the sentence.”

In this relation, the AG explained, “(Justice) Wahab Miah asked me a question at the beginning, “whether the appeal is against the charge or against the sentence? In respect to that my submission is- normally there is only a single charge in criminal case.” Justice Sinha protested and said, “No, we have got examples of several charge in a single criminal case.” Justice Mahmood further explained, “for example a person can be charged under sections 304 and 308 of the Penal Code at the same time.” The AG replied, “My Lords, in that case the sentence is given as a whole (not separately).” Finally he concluded saying that, “these are my submission, my lords.” He further added one last submission, “In the case of an amendment of the constitution, when it (amendment) is done, it is presumed that it has been done from the very beginning.”

At 10:55 am the AG completed his submission. The counsel for Mollah, Khondokar Mahbub Hossain went to the dais and submitted he is not prepared for the submission (as he was in abroad some days and he has to appear on some other cases) and prayed time until next day. However, the CJ said, “Mr Hossain, you are senior counsel and you have a very distinguish background. We do not expect it from you. You have got notice 3 weeks before. Now please start making your submission.” It was 2 minutes to 11 am (time for usual 1 hour tea-break), thus Mr Hossain requested the bench that he will start at 12 pm instead and the CJ happily agreed with that. The court was then adjourned for an hour.

The bench sat again after the break. 

Counsel for Mollah, Khondokar Mahbub Hossain started his submission saying that, “Trial of war criminals in Bangladesh is going to be a concern around the world. The purpose of the ICT Act 1973 was to try 195 Pakistani soldiers who were the principal offenders. Later on 17,000 was arrested under the Collaborators Act and they have been forgiven already. Now, just because of the ruling parties’ election manifesto the government is now trying ‘little fish’ leaving those ‘big fishes’. At page 45 of their book, the purpose of the appeal has been stated (he readout the purpose). My submission is- the very appeal is not covered by law in respect of charge number 4. A case cannot be divided in respect of charge. This is the fundamental principle. 

My next submission is- it is the discretion of the trial court to award sentence if there is an alternative.”

Justice S K Sinha interrupted and asked him boldly, “Is that a discretion?” Counsel Khondokar Mahbub Hossain replied, “Yes, under Code of Criminal Procedure. There are so many judgements.” However, the CJ said, “But Mr Hossain, the Code of Criminal Procedure (1898) is not applicable in this matter.” Mr Hossain’s counter argument against that was, “My lord, this law is so special that nothing is mentioned about the power of the Appellate Court. Thus, it is upto the appellate court to decide what is the applicable law to govern this matter in their court.”

Khondokar Mahbub Hossain further argued, “Your lordship can neither decrease or increase the sentence of the respondent.” The CJ asked him, “Why?” Mr Hossain replied, “Because there is nothing in the law regarding your power.” CJ (smilingly) replied, “If this is your submission, in that case your other appeal is not maintainable.”

After that K M Hossain started to make his submission again. In respect of appeal against the acquittal of respondent his submission was, “As there was no total acquittal, therefore, the appeal is not maintainable.” Sinha J. asked him, “Why you are saying there is no acquittal?” K M Hossain replied, “My lord, there is acquittal against the charge, not as a whole.”

His submission against the appeal against the sentence was, “The judgement passed on 5th February 2013 and the amendment was brought on 18th February 2013, therefore, the appeal is not maintainable. The very purpose of the amendment is a result of shouting outside the court.” The CJ interrupted at this point and said, “As a CJ, I need to say Mr Hossain and Mr Razzaq, no one should comment about a subjudice matter.” K M Hossain replied, “That is the unfortunate part, my lord.” He added, “It is applicable for both of the parties.”

Mr Hossain then continued with his submission, “This Act has been amended to serve the political purpose. The intention of the legislature while enacting this law was to try the member of the armed forces and auxiliary forces but the Act has been amended one after another. By inserting Art 47 (3) by way of amendment in 1973, the legislature has tied up the hand of judiciary. Fundamental principle cannot be changed whatever the law is.” 

The CJ replied, “But you have not challenged the amendment.” K M Hossain replied, “Where shall we challenge my lord?” He further added, “My lord, the war criminals have been tried in some other countries in the world so far, however, no where it was done by the way we are doing. If the law is changes so rapidly then what is the need of a court?”

He further added, “We do not have anyone but god in the sky and you on the earth to seek justice. You should say to the government, ‘No, you cannot use us as your weapon.’ The respondent was coming before your lordship to decrease his punishment but they (government) said, ‘your punishment will rather increase, let alone ‘decrease’ it’. The amendment is not procedural matter. It is not a mere procedure; it is attached to right of my client. So, my respectful submission is- this appeal is not maintainable; at least in this case. Provision of CrPC and Evidence Act shall not apply to this Act which has affected the substantive right of my client.”

In response to that, the CJ replied, “You people will assist us; it is upto us whether we shall take it (the particular argument) or not.” In response, Mr K M Hossain said, “ I am really upset to see this law. In my entire practice life I have not seen such a law.”

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