SC has inherent power to hear review, says defence
Attorney General Mahbubey Alam on Wednesday told the Appellate Division of the Supreme Court that the Constitution has curbed the right of the person convicted of crimes against humanity during the 1971 Libration War to seek review his sentence.
The chief government law office came up with the view while opposing the admissibility hearing on the sentence-review petition filed by condemned war crimes convict Abdul Quader Mollah, known as Kashai (butcher) Quader in 1971, now assistant secretary general of Jamaat-e Islami.
In support of his contention, AG Mahbubey Alam referred to the article 47 A (2) of the Constitution that says, “Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of the article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.”
Article 47(3) reads as follows, ”Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with , or repugnant to, any of the provisions of this Constitution.”
“So condemned war crimes convict Quader Mollah has no right to seek review,” said the AG, adding that the section 24 of the International Crimes (Tribunals) Act 1973 also imposed restriction in this regard. It says:
”No order, judgment or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever except in the manner provided in Section 21.
Mahbubey Alam argued that since the ICT Act was enacted by the parliament, so the review is not tenable according to the law framed by parliament.
Earlier, Barrister Abdur Razzaq, the counsel for condemned Jamaat leader Abdul Quader Mollah, now awaiting execution, moving the petition said review is not a remedy. It’s Constitution’s inbuilt power and the Rules of the Supreme Court that dispenses justice.
In support of his argument, Barrister Razzaq referred to the article 105 of the Constitution that says: “The Appellate Division shall have power, subject to the provision of any Act of Parliament and of any rules made by the division to review any judgment pronounced or order made by it.”
The article specifically made it clear the power of the Appellate Division which is inherent, not the essence of remedy, he said.
Interrupting the counsel, the Appellate bench said the power of the AD (Appellate Division) is subject to conditions set by the ICT Act and such inherent power is not above the Constitution.
In reply, Barrister Razzaq said there is nothing in the ICT Act restricting review plea.
Referring to article 104 of the Constitution, Barrister Razzaq noted that as it gives AD power to doing complete justice which means the application of inherent power. Besides, SC Rules provide review provision, he mentioned.
He further said the AD not the ICT sentenced his client to death penalty. So, it is not the review plea on the ICT judgment and sentence, he said.
Barrister Razzaq, also an assistant secretary general of Jamaat-e Islami, told the Appellate bench that the review plea was filed against the AD verdict, so there is no ‘impediment’ to seek review.
The admissibility hearing on the sentence–review before the five-member Appellate Division bench, headed by Chief Justice M Muzammel Hossain, remained inconclusive, which will resume on Thursday morning.
During the hearings, the defence counsel prayed for extension of its stay order on the execution before the deadline at 10:30 am, the AD bench said since the matter is pending with the apex court, the execution remains inoperative until further order,
It further said there is no need for ordering extension of the 12-hour stay afresh issued on Tuesday night by the chamber judge at his Kakrail residence in the capital following a defence counsel petition.
On September 17, the Appellate Division of the Supreme Court sentenced Abdul Quader Mollah to death, overruling the ICT verdict that had awarded him life term imprisonment for committing crimes against humanity during the 1971 Liberation War.
Source: UNB Connect
