Dr Kamal opines against BDR trial under Army Act
Wednesday, 2 September 2009
Noted jurist Dr Kamal Hossain viewed that the BDR mutineers cannot be put on trial under Section 5 of the Army Act by issuing a gazette notification with retrospective effect, as the hearing on the presidential reference on the legal conundrum resumed Tuesday.
Dr Kamal said this Tuesday as amicus curiae while giving his views before the full court of the Appellate Division of the Supreme Court (SC) over the President's reference, reports UNB.
"The government can make no law to try any offence already committed", he said.
The reference was sent by the government for a direction from the apex court to clear the legal enigma over trial of the suspects in the February 25-26 carnage in the BDR headquarters.
Earlier, Dr Kamal submitted a written statement before the court on the presidential reference, raising the rhetorical question whether the provisions of the Army Act 1952 (Act XXXIX of 1952) can be applied against the BDR personnel involved in the incident and then outright negated the option.
"The Bangladesh Army Act 1952 in Section 2 defines the persons who are subject to the Act. The BDR personnel do not fall within the definition of Section 2," he said.
He held the view that Section 5 of the Army Act, by a notification, could be extended to members of a disciplined force raised and maintained by the government.
"But, under the existing law, such a notification cannot have retrospective effect. Therefore, since the question addressed to the court is whether the Army Act can by notification be applied to the said BDR personnel, meaning those who are alleged to be involved in commission of offence on 25 and 26 February, the answer is that this cannot be done as the alleged offences were committed on 25 and 26 February and the notification cannot be given retrospective effect."
The problem, therefore, has to be squarely faced by thorough investigation to identify those responsible, and by effective prosecution to bring them to justice, for which the responsibility is that of the Executive Branch of the Sate, said the former foreign minister in writing.
Another court-appointed amicus curiae, noted constitutional expert Barrister M Amir-ul Islam, in his concluding analysis joined his voice with Dr Kamal.
He told the court that the grievous offences collectively committed by the BDR mutineers cannot be court-martialed under the Army Act of 1952 or its Section 5 by issuing a gazette notification, as he said one law cannot be made applicable to the other.
Court-martialing is 'judicial killing', since it does not follow the judicial norms, said Amir, also former president of the Supreme Court Bar Association (SCBA).
He said for those heinous offences committed by the BDR men during and after the BDR headquarters massacre, it was possible to put the perpetrators in the dock for trial under the BDR Act. "There is no scope to try them under the Army Act."
One of the framers of the constitution, Amir rather preferred putting the suspects in the dock by constituting a special tribunal with a High Court Judge under the International Crimes (Tribunals) Act 1973, as the perpetrators had collectively committed a series of barbaric offences that amounted to 'crime against humanity and genocide'.
The reference hearings will resume today (Wednesday).
Dr Kamal said this Tuesday as amicus curiae while giving his views before the full court of the Appellate Division of the Supreme Court (SC) over the President's reference, reports UNB.
"The government can make no law to try any offence already committed", he said.
The reference was sent by the government for a direction from the apex court to clear the legal enigma over trial of the suspects in the February 25-26 carnage in the BDR headquarters.
Earlier, Dr Kamal submitted a written statement before the court on the presidential reference, raising the rhetorical question whether the provisions of the Army Act 1952 (Act XXXIX of 1952) can be applied against the BDR personnel involved in the incident and then outright negated the option.
"The Bangladesh Army Act 1952 in Section 2 defines the persons who are subject to the Act. The BDR personnel do not fall within the definition of Section 2," he said.
He held the view that Section 5 of the Army Act, by a notification, could be extended to members of a disciplined force raised and maintained by the government.
"But, under the existing law, such a notification cannot have retrospective effect. Therefore, since the question addressed to the court is whether the Army Act can by notification be applied to the said BDR personnel, meaning those who are alleged to be involved in commission of offence on 25 and 26 February, the answer is that this cannot be done as the alleged offences were committed on 25 and 26 February and the notification cannot be given retrospective effect."
The problem, therefore, has to be squarely faced by thorough investigation to identify those responsible, and by effective prosecution to bring them to justice, for which the responsibility is that of the Executive Branch of the Sate, said the former foreign minister in writing.
Another court-appointed amicus curiae, noted constitutional expert Barrister M Amir-ul Islam, in his concluding analysis joined his voice with Dr Kamal.
He told the court that the grievous offences collectively committed by the BDR mutineers cannot be court-martialed under the Army Act of 1952 or its Section 5 by issuing a gazette notification, as he said one law cannot be made applicable to the other.
Court-martialing is 'judicial killing', since it does not follow the judicial norms, said Amir, also former president of the Supreme Court Bar Association (SCBA).
He said for those heinous offences committed by the BDR men during and after the BDR headquarters massacre, it was possible to put the perpetrators in the dock for trial under the BDR Act. "There is no scope to try them under the Army Act."
One of the framers of the constitution, Amir rather preferred putting the suspects in the dock by constituting a special tribunal with a High Court Judge under the International Crimes (Tribunals) Act 1973, as the perpetrators had collectively committed a series of barbaric offences that amounted to 'crime against humanity and genocide'.
The reference hearings will resume today (Wednesday).