Thursday, October 3, 2013

Quader Molla appeal, day 25: Attorney General arguments

18 June 2013
To see previous day's proceedings

The AG went to the dais and submitted, “This Act has been enacted in 1970s. Now, the question is whether they can challenge the law.” Wahab Miah J. explained to the AG, “Their submission was there was no proceeding after the enactment of the law.” The AG, continuing his submission, replied, “I shall make my first submission on this from the constitution.” The CJ and Sinha J. explained together to AG, “They (respondent) are not questioning the law. They are simply questioning whether the very (last) amendment is applicable to the respondent.” In response the AG argued, “It is a protected law under the article 47 and this is the decision of the parliament.” Sinha J. argued, “Should we accept it just because the parliament has enacted it? In that case, there is no need of judiciary.”

CJ assisted the AG and said, “You are trying to say as the law is protected by the parliament therefore any subsequent amendment is also protected by that. This is your submission, right?”

Sinha J. argued, “This is not only procedural law but also substantive law. What will be the effect if you amend such a law?” Chowdhury J. asked, “Can you please tell us whether the punishment is procedural or substantive? The incidents took place in 1971. If the trials were taken place in 1971, there would not have been any problem.”

Mahmood J. suggested, “The Parliament could have included the words ‘notwithstanding anything contained in the judgement’.”

AG argued, “Where the law is itself protected, there is no point to include these words.” Sinha J. again explained to AG, “The amendment is valid; there is no question about the amendment. Mr Abdur Razzaq, the learned counsel for the respondent, did not challenge that.” AG disagreed and claimed, “They did.” Sinha J. disagreed and said, “No. Mr Razzaq just submitted that the amendment is not applicable to the respondent.” AG did not argue further on this point.

AG then submitted, “I shall refer 4 cases in this regard. The first one 18 BLD (AD) 155, is at page 18 of the paper book, the relevant paragraph is 36 and the relevant part started from 10th line from the bottom. Here the Act (Indemnity Ordinance) was passed out of malice because the party was in the power.” Chowdhury J. reminded him, “Listen Mr AG, it is not disputed.” 

However, AG continued, “it is not permitted that the court questions such an Act of Parliament.” Wahab J. reminded the AG again, “Abdur Razzaq did not say that in his submission.” CJ further added, “Nobody submitted that the amendment has done out of malice. Parliament is competent enough to pass such an amendment. Mr Abdur Razzaq simply submitted that this amendment is not applicable to this case only.”

Sinha J. then asked AG to readout paragraph 35 of the case he cited above. The AG read out accordingly. Sinha J. argued, “Here the (then) CJ Afzal in the opinion that since the Ordinance has already been repealed there is no question of bar.” 

Wahab J. argued, “Legislature did know about the judgement while passing the amendment Act. Then why did not they include the words ‘notwithstanding anything contained in the judgement’? AG again gave the same reply, “It is a protected law that is why the legislature did not include that. I shall explain it more in my next point.”

Sinha J. stopped him there and said to him, “You first answer the query of my brother (Wahab Miah J.) and then move to your next point. You may be thinking about this single case but we are thinking about subsequent thousands of cases. This decision may affect all those cases if not properly clarified.” 

AG then readout a part from another judgement/decision in order to answer the query. However, Sinha J. was not satisfied and said to AG, “This is not the answer of that question. What about section 6 of the General Clauses Act?”

The AG, overlooking the question, said “Now I shall make my submission on procedural law and I shall make my submission on this afterwards.” 

He then submitted, “There are 4 amendments of the ICT Act altogether- 1st, 2nd, 3rd and 4th. And only this 4thamendment has passed with retrospective effect. Sinha J. asked him instantly, “What do you mean by ‘retrospective effect’? In reply AG wanted to quote something to define that but Sinha J. asked him to explain. However, before he started explaining Wahab Miah J. commented, “Initially I was sentenced with life-imprisonment and now I am going to be sentenced with death- how irrational is that?”

However, the AG submitted, “This is absolutely procedural because the death sentence was there since the enactment of the first amendment in 2009.” 

CJ the suggested, “Have you got any parliamentary debate, query etc. during passing of the amendment Act with you?” AG gave affirmative answer and moved page 7, paragraph 2: “Purposes and reasons for passing the amendment”. Sinha J. and CJ asked him to readout the whole so that everyone may listen that. The AG readout accordingly. The purpose can be summarised as ‘to ensure equality before the law and in pursuant of the constitutionally protected right to seek justice’. However, Sinha J. and Wahab J. argued, “There is no reference of the judgement in the purposes and reasons. However, it says that the trial is pending now.”

CJ then suggested, “Now come to the deliberation.” AG then started to read out from a statement of the Parliamentary Standing Committee on Law and Justice. However, Wahab Miah J. argued, “There is nothing in this statement that by this time the judgement has been pronounced. They have not specifically mentioned that it is applicable where the judgement has been pronounced. It seems from the texts that it has been enacted for future judgements.” 

AG argued, “The purpose of this Act is to try the war criminals but if your lordship says like this then the purpose will be frustrated. It has already been given retrospective effect.” Sinha J. criticised, “You could not even properly explained what is meant by ‘retrospective effect’.” AG then said, “Now I shall cite a case on retrospective effect and then I shall move to the next point.” CJ then commented, “Do not go so fast; go slowly.”

At this stage, CJ, Chowdhury J. and Wahab J. were reading quietly the HANSARD (parliamentary discussion) during passing out the amendment and then the CJ said to AG, “There is no deliberation here.” Wahab Miah J. added, “There is no single word about that.” 

CJ further added, “But Mr Abdur Razzaq has shown us the discussion of the Members of the Parliament (MPs) like Manaranjan Dhar, Asaduzzaman etc. They were not qualified lawyers but they were learned persons.” The AG simply replied, “the main purpose in general is to try the war criminals.” However, Sinha J. reminded him, “This is not a place of emotion. This is the Supreme Court of Bangladesh.”

AG then cited 34 DLR (AD) 321 on the retrospective effect. He stated, “In my paper book, it is in the running page 32 and the relevant paragraph is 22.” Wahab J. argued, “If the words ‘notwithstanding anything contained in the judgement’ were added, then there would not have been any problem.” The AG replied, “I understand, my lord. But my submission is where there is a canon there is no need of a pistol.”

The AG then moved to his next case 63 DLR (AD) 18. He stated, “In my paper book the judgement started at page 35 and the relevant paragraph is 39 and the relevant page is also 39.” He read out the said paragraph.” Sinha J. argued, “You are saying lot of things but we have got only one question- whether this amendment affects respondent’s right?” The AG replied, “I shall show your lordships later on that this amendment does not affect his right; he could do whatever he could do before but the right has given to me.”

The AG then cited the next case: AIR 1952 (SC) 252 which is at running page 57 and the relevant paragraph is 71. The case is basically regarding changing law about land requisition and in this case it was decided, “Legislatures have all power to change a law except changing the basic structure.” Then the AG submitted, “My submission on this point is- since 2009 the death sentence is already in the ICT Act therefore, nothing new has been introduced. Now in respect of the ‘question of applicability’ my submission is- since the respondent has not been barred by amendment to appeal against the decision of the ICT and the purpose of the amendment is to bring equality for the both parties, therefore, it is applicable to the respondent.” Wahab J. commented, “Yes, but the equality in future; not for this case.” CJ then said the AG, “Please show us any such discussion on this point at the parliament in 1973.” AG simply said that there was such discussion. However, Wahab Miah J. opined, “There was no case at that time. The purpose of the amendment says ‘the trial is on going’. It does not say it is applicable to any judgement which has already been decided.”

At this stage Sinha J. said to AG, “You need to go deep. By this general argument you won’t be able to convince us, at least not me.”

Chowdhury J. stated, “Section 6 of the General Clauses Act says it is not applicable. However, his right has not been affected.”

After that the AG cited another case from 20 DLR.

After that the CJ and Sinha J. enquired to AG- about the reasons for which he thinks that the respondent’s right has not been affected by the subsequent amendment. The AG replied, “It is very simple. You can see his right has not been affected at all; simply my right has been given.” CJ added, “yes, affecting his right.” AG disagreed and said, “No.” CJ then said, “You have given us the discussion of the parliament but could not show us anything from which we can assume that parliament intended the amendment to be applied for this matter.” 

The AG then referred the speech of Rashed Khan Menon, MP. However, the CJ opined, “That speech is not suited to this matter and is not clear.”

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