Monday, December 9, 2013

Molla's impending execution - when can it happen

This is the first of a sequence of posts about the impending hanging of war crimes tribunal convict, Abdul Quader Molla.

To read the background about this case see: 

17 Sep 2013 What happens now with Quader Molla case

There are strong, though very much unconfirmed, rumours that Molla may be executed sometime tonight (evening of the 8/9 December). It is difficult to know whether to take these claims seriously or not.

This first post looks at whether this could technically happen

Earlier today (8 December), the International Crimes Tribunal registrar signed a 'Warrant of Execution' following receipt of the certified copy of the judgement of the appellate division  which had ruled that in relation to one of the convictions, Molla should receive a death penalty rather than a sentence of imprisonment.

The warrant has been sent to, and received by, the Jail Superintendent of Dhaka Central Jail where Molla is currently detained.

The issue of the jail code
Now usually, in such situations, the jail code should apply.

Rule 991(I) of the Jail Code states that once the Jail Superintendent has received the warrant of execution he should 'immediately' inform the convicted person that 'if he desires to submit a petition for mercy [to the President] it must be submitted in writing within fifteen* days ...'. [Please note an earlier version of this post stated that this was 7 days. However, the jail code was amended in May 2010, and 15 days is now provided to a person on death row to seek a pardon from the president]

It has become 'practice' that mercy petitions should include an acceptance of one's guilt, but it does not appear to be formally set out anywhere in law.

If the convict does submit a mercy petition, once a reply has been obtained from the President and assuming it is negative, the jail superintendent should, according to rule 991(vi), fix the date of execution not less than 21 days and not more than 28 days after receipt of the rejection.

If the convict does not seek clemency, the jail code does not seem to set any time restrictions on when an execution could take place - however it is arguable that rule 991(vi) implies and that the time frame of 21 to 28 days applies even if the convict does not seek clemency.

There have been mixed messages on the part of the prosecutors and government officials as to whether in the government's view the jail code should apply. 

Some members of the government have argued that in relation to cases coming from the International Crimes Tribunal, the jail code is not applicable, pointing out that the ICT Act does not mention the Jail codes and simply states, ‘The sentence awarded under this act shall be carried out in accordance with the orders of the government,’ though others have suggested that it does apply. 

The defence argues that the jail code applies to every person detained in jail.

Defence lawyers suggest that it is unlikely that Molla will seek clemency, however even assuming that he does not, the application of the jail code would be important in that it would give him at least seven further days of life, and even possibly a further 21 to 28 days, before execution.

So an acceptance of the jail code would mean that Molla could not be executed until 15 December and possibly for a further 3 to 4 weeks.

The issue of the review application
The significance of the jail code would not be so great but for the fact that the government and the ICT prosecutors have taken a position that Molla has no right to seek a ''review of the appellate division.

Article 105 of the constitution states that, 'The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.' The appellate division rules allows a person 30 days to file their review.

As I have discussed elsewhere, the government does not accept that the defence has the right to seek a review. The defence however argue that it is for the appellate division itself to determine whether it has jurisdiction over this matter - see here

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