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.

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