Monday, November 3, 2014

Kamruzzaman death sentence upheld, what happens next

Md Kamaruzzaman, death penalty upheld
With the appellate division today upholding, by a majority decision, the death sentence on the Jamaat leader, Kamaruzzaman for charge no 3 (the death penalty for charge 4 was commuted to life imprisonment) what happens now?

First of all, court precedent suggests that nothing will happen on the basis of this 'short order'. The carrying out of the death sentence will have to wait until until the full written judgement is given, and this can be quite some time. In the case of Molla, the short order was given in September 2013, and the written judgement in late November, a few months later.

Secondly, the defence will seek a review of the decision (Tajul Mohammed, the defence lawyer has already said that). Since there has been no written decision on the application by the defence lawyers in relation to its application seeking a review of the Abdul Quader Molla appellate division decision, it remains unclear whether the court accepts the right of the defence lawyers to seek such a review.

However, even if the court does accept a review application, this may add an extra few days to the process, but is very very unlikely to stall it (see below)

Thirdly, since the position of the government (and it appears the court) is that the jail code does not apply to those convicted by the ICT, once the full written judgement is given, the process towards the carrying out of a death sentence, if that is what the government wants to happen, can be quite swift.

On the issue of the review of an appellate division decision, I am setting out below what I have earlier written in the context of Sayedee
Article 105 of the constitution sets out the power of the appellate division to review its judgment. This Article states:
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. 
Order 26 of the Appellate Division rules sets out the procedure for this.
1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record. (emphasis added)
2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed.The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.
3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.
4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.
5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
6. Except with the special leave of the Court, no application for review shall be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed. (emphasis added)
8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.
9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed. (emphasis added) 
The following should be noted about the 'review':
- there are very limited grounds that can allow a review of an appellate division decision to be successful: there has to be an 'error apparent on the face of the record' which in case law is drawn very narrowly. 
- it is not an appeal. It is heard by the same bench of judges that made the order which is in question. So the applicant is asking the same set of judges to accept that they made a serious error! As one cam imagine, successful appellate division reviews are therefore very uncommon. 
- The International Crimes Tribunal gave itself the power to review its decisions and although it has dealt with dozens and dozens of applications for review, I am not aware of a single decision that was fully overturned. 
In the Molla case, the defence argued that the accused had a right to review under article 105, but the attorney general argued that it did not - claiming that the limits of the an accused's right to appeal are set out in the International Crimes (Tribunal) Act 1973, due to Article 47(3) of the constitution which precludes a person accused of international crimes from seeking any constitutional remedy. In the Molla case, the appellate division did not clarify whether there was a right to review or not - dismissing the review application without passing a reasoned order.

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