Thursday, October 3, 2013

Quader Molla appeal, day 29: Amicus arguments 3

10 July 2013
To see previous day's proceedings

Azmalul Hossain QC went to the dais and started to make his following oral submission on the basis of his written submission.

He submitted that the matter should be decided by (1) constitution (supreme law of the country), (2) ICT Act 1973 which has directly and indirectly address the international law, and (3) customary international law which does not have any overriding effect.

He further submitted, “International Tribunal is different. Here is international crimes tribunal. It is a domestic law trying international crimes. In our legal system (e.g. Penal Code) there is no such crime. And obviously that cannot override the customary international law.”

Hossain then referred the Proclamation on Independence and the CJ commented, “It is the milestone.” Chowdhury J commented, “it is the Genesis.” Hossain then readout and argued, “That is the reason for forming the International Crimes Tribunal.”

At this stage he submitted the whole bundle (including supporting documents, case laws etc.) before the tribunal also gave copy to the respondent. He then started with the Nuremberg Charter at page 122 of his bundle. He read out the purpose of the Charter and Article 6 of the Charter (started at the end of page 123 and continued at page 124)- crime against humanity – “violation of domestic law.” He then submitted, “This is the only reference of international law.” He then moved to article 12 of the Charter and submitted, “This is very much similar to our ICT Act; it is parallel.” He then moved to chapter 4, article 6 at page 125 and finally moved to page 127- judgement of the tribunal.

He then submitted that, “My submission is this is that ICT was the national codification of the international law. The suffering was unique. There has to be punishment, there has to be retribution, there has to be legal action. And that is why the ICT Act 1973 came into force. The good thing is we have codified customary international law as national legislation.”

He then moved to the ICT Rules of Procedures 2010 (page 45 of the defence’s paper book) and referred (original) rule 50 and the amended one where it has been inserted, “beyond reasonable doubt”. He then moved to page 102, rule 50 of the ICT-2 which does not make any difference. He then submitted, “the reason I have referred those rules because these are also part of the legal framework.” He further submitted that, “There is a question of inherent unfairness (in respect of retrospective effect) but it does not weight as there was always risk of capital punishment.”

He further submitted that the Statute of ICC is ‘complementary to the national legislation which can be evident from its preamble and article 1.

He then summarized the ICT Act 1973 as- (1) it is a codification of the International Law, (3) it is a protected law under the constitution and the reason is the ‘Proclamation of Independence’. He then defined ‘What is customary international law’ (submitted on the basis of paragraph 7, page 4 of his written submission) and then opined that ICT Act 1973 is so far not inconsistent with domestic law.

He then moved to the last part of the paragraph 24 at page 16 and on the basis of that he submitted that, “customary international law is applicable subject to the provision of the domestic law and international customary law does not have any overriding effect.” He further submitted on the basis of the paragraph 25, “ long as the later is inconsistent with the first one.” He then explained the consequence of that inconsistency.

Sinha J. made an enquiry at this stage, “At paragraph 19 at page 13, you have made an reference to European Convention of Human Rights (ECHR) which has come from treaty.” Chowdhury J. commented, “Yes, by enacting Human Rights Act 1998, it is now enforceable at British courts. And our constitution has got the same provision.”

Ajmalul then made his submission on ‘What is the consequence of customary international law?’ He submitted that, “..the relevant question is jurisdictional.” He further the submitted that, “...this is the law. When there is a law in this regard, it prevails.”

Chowdhury J. made a query to Mr Ajmalul then, “Mr Hossain, whether Nuremberg, ICTR, ICTY etc. judgements have got binding force?” Ajmalul replied, “Yes, those judgements just have persuasive force.”

Ajmalul then moved to the definition of crime of murder. He defined it as ‘unlawful killing’. Chowdhury J. then argued, “Mr Razzaq has particularly argued that ‘murder’ has not been defined in the ICT Act.” Ajmalul replied that, “But it has been defined under the domestic law.” Chowdhury J. added, “And it is a part of crime against humanity.” Ajmalul further added, “And it is a domestic tribunal.”

Ajmalul made his final submission on the issue- ‘how customary international law affects a municipal law and municipal court’s decision?’ He referred and read out page 103 of Charles G. Fenwick’s book on International Law. He then said that he will read out some paragraphs from pages 107 to 118 and submitted that the answer of the above question starts from page 106B having the heading ‘Enforcement of international law by municipal law.’ He addressed Blackstone (1860) as the legal authority here.

Chowdhury J. commented, “English legal system is a dualist in respect to treaty.” QC agreed and added, “yes, and the practice of USA is monist.” Chowdhury J. replied, “And the ultimate answer is- supremacy of municipal law.”

He then read out from the page 110 and submitted, “...the legislative measure should be taken by the state to implement international law in the municipal law and it is a national obligation.” He then readout some paragraphs from page 112 to 118 and then moved to page 6 of his bundle having the heading ‘Role of international in municipal law.”

He then moved to page 9 of his submission and referred cases and then moved to page 10 and referred a Privy Council case. Ajmalul then moved to paragraph 18 of his written submission and then page 61 of his bundle he copied Malcolm D Evan’s book on International Law (2nd edition) and then submitted that the ICT Act 1973 is consistent with the customary international law.

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