Thursday, October 3, 2013

Quader Molla appeal, day 31: Amicus arguments 5

21 July 2013
To see previous day's proceedings

This was the 2nd day of submission by barrister Rokon Uddin Mahmood.

Rokon Uddin Mahmood went to the dais and continued his submission reading out the questions raised by the bench in this issue. He submitted that he will answer the questions one by one.

At this stage he submitted his written submissions and supporting documents etc. Then he started making his submission answering the first question i.e. whether customary international law 

Then he started to answer the 2nd question i.e. whether the amendment to section 21 made on 17th February 2013 with retrospective effect from 14th February 2009 providing for right of appeal against an order or sentence by the government after the judgement of trial court is applicable in respect of convict-appellant Abdul Quader Mollah? He clarified that his written submission in this regard is based on cases from Brownlie’s International Law book. He further clarified he has submitted two written submission; first one for first question and the second one for second question. He made his submission mostly based on his 2nd written submission. He read out or summarised or paraphrased the paragraphs one by one. As soon as he finished reading out the paragraph 3, the CJ adjourned the court for an hour for its usual tea-break.

After the break the bench sat again at 12:10 pm. Mr Rokon started to make his submission from last paragraph (no. 4th) of page 2. He continued reading paragraphs one after another, referred the case laws from the written submission. As soon as he finished reading out paragraph 14, Chowdhury J. reminded him (as the submission he made was basically on the justification of the amendment which was not the question), “Mr Mahmood the question is- whether this amendment is applicable to the convict-petitioner Abdul Quader Molla?” Rokon replied, “I have answered the question at paragraph 8 in page 2 and that is, it is applicable to the convict.”

He then continued from the paragraph 17 where he referred the Solicitor’s clerk case on retrospective effect and power of the legislature. He then moved to paragraph 20 where he explained why section 6 of the General Clauses Act 1897 is not applicable to this amendment. He submitted, “The original section stand as it is; nothing has been changed apart from adding up couple of words. The plain text of the amendment says that it has substituted the previous section though. This submission is based on a case from 13 DLR.” Chowdhury J. commented, “Apart form that the ‘dictionary meaning’ of the term ‘repeal’ is ‘wiping out’.” Rokon then submitted, “Even if the law has not been amended and even if there was no appeal by the government, the court has still got the inherent power to enhance the punishment.”

Chowdhury J. then asked him another question, “What do you say- this amendment is procedural or substantive?” Rokon overlooking the question replied, “if someone want to challenge the amendment, he or she cannot do so as he or she is barred by article 47 (3) that it cannot be challenged.” 

Chowdhury J. insisted, “you want to say the right is still the same as it was before.” Rokon replied, “Yes, I want to say if the appeal was already lodged before the amendment passed, there might have been an argument in the favour of the convict-appellant but it was not done. The amendment was done within the 30 days for making the appeal and before any appeal was lodged.”

TH Khan written submission: After that, son of T H Khan (one of the amicus curiae), who is also an advocate enrolled with the Supreme Court came to the dais and informed the court that Mr Khan is physically unwell to appear before the court and he will read out the written submission on behalf of his father. 

See written submission of TH Khan
As soon as he finished, barrister Amirul Islam, one of the amicus curiae, came to the dais and said, they have prepared a reply to barrister Abdur Razzaq’s query. The bench asked him to come up with those on the next day.

Finally, the last amicus curiae Hasan Arif came to the dais and made his submission for a few minutes

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