Tuesday, September 17, 2013

What happens now with Quader Molla?

What happens now that the appellate division has imposed the death sentence on Abdul Quader Mollah  in relation to one offence. How quickly can the executive carry out the order of the court, if it so wishes?

1. Certified copy
It seems clear that nothing can happen before a certified copy of the order is produced by the Appellate division. (In the court room today the chief justice simply stated the conclusions of the appeals, and did not provide any reasons.)

So either a decision - with reasoning - has to be written or if it has already been written, a'certified' copy has to be produced.

Then, according to the Attorney General the certified copy has to be sent from the Appellate Division to the International Crimes Tribunal which he said was 'the executing court'. The Tribunal will then issue a 'warrant of death' which will be given to the jail authorities, which is responsible for carrying out the hanging.

It should be noted that courts in Bangladesh can take a very significant time to complete their written judgments - many months, sometimes more than a year. It is upto the five judges to decide whether the decision will be completed quickly or not. It is of course also possible, I imagine, that the dissenting judge could delay the certification process

2. Review petition
Once a certified copy has been written - there is the question of a review petition. On this the defence lawyers and the attorny general/law minister have different position.

According to the defence, Article 105 provides Molla the right to seek a review of the appellate decision. 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 onthe face of the record.

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 shaH 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.

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.
So any review would need to be made, "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." It goes onto say, "Every application for review shall be accompanied by a certified copy of the judgment."

The defence argues that this means that they have 30 days to file a review application after they have got a certified copy of the order. The review has to be very narrowly drawn - an 'error apparent on the face of the record' has to be shown. The court can either refuse to hear such a petition, or they can agrre to hear some arguments and then make a decision.

The Attorney General however argues that there is no such right to a review, pointing out that there is no such provision in the International Crimes (Tribunal) Act 1973 for such a review. He stated to me in an interview:

"Before enactment of this law the constitution was amended, and thereafter the [International Crimes (Tribunal) Act] is a special law for a special purpose and in this law there is provision for trial by tribunal and there is a forum for appeal. Since there is nothing in law about any review according to me there is no scope for review."

Another AG official pointed out that Article 105 gives the right, 'subject to the provisions of any Act of Parliament', and because of the status of the ICT Act - with its exemptions from constitutional provisions through Article 47 of the constitution - the section does not apply

When I asked Abdur Razzaq, the chief defence lawyer about the view held by the attorney general - a view which also appears to be held by the Law Minister - he said the following:

I think the Attorney General is incorrect. We certainly have right both under Intenratoinal Crimes Tribunal Act and under constitution to file a review The appeal was heard both under the constitution and under ICT Act, and constitution clearly says that right to review and more so in this case as this is first court giving the death penalty. Normally a death penalty will go before both the high court and appellate division - so at least there must be a right to review
He said that he was particularly concerned that this was the AG's view as he "is the person who is advising the govt" 
"We may have to go to appellate division to seek a stay of application of the death penalty until an application is dealt with."

3. Clemency
Both defence and the state however argue that Molla could seek clemency under Article 49 of the constitution. This states:
"The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority."
The Attorney General stated to me that:

"In our country after judgement, death penalty cannot be done in a few days. There is a procedure. Accused has to be informed. He has right to seek clemency.

This however is a private matter for the Molla and his family, and according to the law minister (see article above) would require Molla having to admit his guilt (though it is not clear what is the basis of him saying that.)

It is not clear whether Mollah needs to have a copy of the certified order of the judgement or not. One assumes that would be necessary.

So where does that leave us? 
In some confusion I think
- first there is a question of how quickly the appellate division decides to issue a certified copy. That seems to be crucial to whether or not hanging could possibly happen in the next few months or not.
- once that is done, and time has been given for an application to seek clemency (though it is not clear how much time would need to be given), it is possible (assuming clemency is not given) under the government's interpretation of Article 105 of the constitution for hanging to take place at any point in time.
- however, the above depends on what the appellate division's view of whether a review application is allowed, and whether or not they agree (assuming the defence do lodge such an application) to give a stay order on the execution of the court's judgement until a review application has been lodged and decided upon by the court.
- even if the appellate division does accept that a review application can be lodged by the defence, it is very unlikely that it will be successful, since it is the same judges who gave the judgement who will make a decision on the review application.

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