Attorney general Mahbubey Alam on Wednesday told the Appellate Division
that no step would be taken to execute condemned Jamaat-e-Islami leader
Abdul Quader Molla till disposal of his petition seeking review of the
highest court’s verdict sentencing him to death.
He said this as the Appellate Division said that since Quader’s petition
was pending before the court, it was not necessary to issue further
orders to extend its earlier order staying the execution.
A five-member Appellate Division bench headed by chief justice Md
Muzammel Hossain adjourned till this morning the hearing on
maintainability of the petition.
The same bench, after hearing appeals preferred by Quader and the
government against the judgement of the International Crimes Tribunal
that sentenced him to imprisonment for life term, pronounced the verdict
on September 17 sentencing him to death on charge of crimes against
humanity committed during the war of independence in 1971.
The Appellate Division’s chamber judge Syed Mahmud Hossain in a sudden
move on Tuesday evening stayed Quader’s execution until 10:30am on
Wednesday and posted for Wednesday full bench hearing on the petition
filed by Quader.
On Wednesday, Mahbubey Alam argued that the review petition which
Quader’s lawyers had filed under Article 105 of the constitution could
not be heard by the court as Article 47A (2) of the constitution stated
that no person tried under
the International Crimes (Tribunals) Act 1973 would have the right to seek ‘any of the remedies under this constitution.’
The Article 105 gives the appellate division the power ‘to review any judgment pronounced or order made by it.’
He also argued that 1973 act stated that no order, judgment or sentence
awarded by the tribunal ‘shall be called in question in any manner or
before any court or other authority in any legal proceedings except in
the appeal to the Appellate Division.’
Mahbubey said that Quader was sentenced to life term in prison on war
crimes charges by a tribunal, and subsequently the Appellate Division
sentenced him to death following government appeal under the act, so the
convict could not get any remedy in accordance with the constitution
and the 1973 act.
Quader’s lawyer Abdur Razzaq argued that the Article 105 of the
constitution and the Appellate Division Rules empowered the Appellate
Division to review any judgement pronounced by order made by it.
Razzaq argued that the 1973 act which prohibited an appeal against any
tribunal orders other than the final judgement was not relevant here as
the defence were not seeking a review of a tribunal decision but of a
judgement pronounced by the Appellate Division.
Denying a suggestion made by Justice SK Sinha, a judge of the bench,
that the tribunal’s judgment ran alongside the Appellate Division
judgment, Razzaq argued that the defence lawyers were only seeking a
review of the death sentence which was given not by the tribunal, but by
the Appellate Division.
He also argued that prohibition stipulated in Article 47A(2) did not
refer to Article 105 which was a ‘power’ of the court, and not a
‘remedy’ to an applicant.
Razzaq also pointed out that if the framers of the constitution meant to
remove application of Article 105 from those sentenced under the ICT
Act, then it would have stated it explicitly, as Article 47(2) set out
three specific fundamental rights which an accused under the ICT Act
could not enjoy.
Quader’s chief defence lawyer also argued that the Appellate Division
had inherent power of review and it could not be removed by any act of
parliament.
The court asked Razzaq whether the Article 105 be could applicable to
Quader as its application was subject to ‘provisions of any act of
parliament’ which could included the ICT Act also.
Razzaq replied that there was no provision in the ICT Act prohibiting the filing of a review petition.
At the outset of the hearing in a jam-packed courtroom, Razzaq prayed
for time until January 2 for preparation of arguments but the court
rejected the plea.
The Supreme Court will go into vacation on December 13 and reopen on January 1, 2014. (source)