BDR mutineers can’t be tried under Army Act: Kamal

Hearing on President’s reference
As hearing on presidential reference on trial of BDR mutineers resumed yesterday, jurist Dr Kamal Hossain yesterday told the Supreme Court that the BDR mutineers can not be tried under section 5 of the Army Act by issuing a gazette notification with retrospective effect.
He gave his views as amicus curie yesterday before full bench of the Appellate Division of the Supreme Court.
Dr Kamal Hossain told the Appellate Division that there is no scope to try the BDR mutineers under the Army Act by issuing notification.
In his brief submission he also said, “The BDR mutineers cannot be tried under Section 5 of the Army Act of 1952 by issuing a gazette notification with retrospective effect,” adding he said, “The government cannot make any law to try any offence that was committed earlier.”
Dr Kamal submitted a written statement before the court on the presidential reference, raising the 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.
The apex court yesterday adjourned the hearing until today (Wednesday). Dr Kamal Hossain is expected to continue his submission today.
An 11-member full bench of the Appellate Division, headed by Chief Justice MM Ruhul Amin, held the hearing for the fourth day on the President’s reference seeking the apex court’s opinion on whether the BDR personnel accused of various offences committed during the February 25-26 mutiny can be tried under the Army Act.
Earlier, noted constitutional expert Barrister M Amir-ul Islam in his submission said, a law should be enacted to try the accused BDR mutineers as the perpetrators had collectively committed a series of barbaric offences including killing, looting and torture during the Peelkhana massacre.
The Attorney General of the country can assist the government in framing the combined law to try the BDR mutineers, he added.
“There is no scope to try the accused BDR personnel under Section 5 (1) of the Army Act as the Section can only be applied for trial of present offences, not those committed in the past, he said.
“The BDR mutineers should be tried in accordance with the Constitution as well as the BDR laws. BDR law has sufficient rules to try them,” Amir said.
Amir took three days to complete his submission on the president’s reference. He also submitted his opinion before the court on August 26 and 27.
Before Amir’s submission, the two another amicus curiae Barrister Rafique-ul Huq and Khandaker Mahbubuddin Ahmed opined that the BDR mutineers can be tried under the Army Act upon issuing two separate gazette notifications.
In the beginning day’s hearing held Tuesday, another amicus curiae TH Khan stated that the BDR personnel cannot be tried under the Army Act as the border force did not fall under the definition of a ‘disciplined force’.
The Appellate Division on August 19 appointed 10 senior lawyers as amici curiae (friends of court) to give their expert opinions.
With their submission, a total of five amicus curiae among the 10 appointed by the Appellate Division submitted have their expert opinions in the hearing.
UNB adds: 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 Peelkhana headquarters massacre, it is 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 amount to “crime against humanity and genocide”.

Courtesy of The Independent