Execution halted till petition disposal
The Appellate Division of the Supreme Court on Wednesday adjourned till Thursday morning the hearing on the maintainability of the review petition filed by the death-row war crimes convict and Jamaat leader Abdul Quader Mollah. Both the chief law officer of the state, attorney general Mahbubey Alam, and the chief defence lawyer, Barrister Abdur Razzak, said Mollah’s execution would be halted till the review petition is disposed of by the Supreme Court.
Molllah filed the review petition with the Chamber Judge of the Appellate Division on Tuesday night against the apex court verdict that awarded him the death penalty for committing crimes against humanity during the 1971 Liberation War.
The five-member bench of the Appellate Division, headed by Chief Justice Md Muzzammel Hossain, started the hearing in a jam-packed courtroom on the review petition at 10.20am. But the court adjourned the hearing for an hour till 11.30am following a time prayer by the defence.
Razzak then requested the court to extend the Chamber Judge’s stay order over the execution.
The court said that the matter is now under the jurisdiction of the court and is now considered a sub-judice matter. The execution process will remain halted until further orders of the Supreme Court, the bench added.
The Chamber Judge, Justice Syed Mahmud Hossain, at 10.20pm on Tuesday halted the execution following a defence move when almost all the preparations had already been made by the jail authorities to execute Mollah at 12.01am on Wednesday.
During today’s hearing that started at 11.35am, attorney general Mahbubey Alam raised a question over the acceptability of the review petition. The court then asked him to place his argument in favour of his question.
After taking part in the hearing, Mahbubey Alam told the court that as per Section 47 (A) (2) of the Constitution, Mollah would not get any remedy for filing a review petition against the apex court verdict.
Section 47 (2) says notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of Article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.
Under this section, Mollah has no right to file a review petition as he was convicted under a special Act of the International Crimes Tribunal Act 1973, which was passed by Parliament. The law, which was enacted by Parliament, cannot be challenged and the review is also not maintainable as the convict Jamaat leader would not get any remedy under this Act, Mahbubey Alam noted.
Opposing his submission, Barrister Abdur Razzak told the court that the review is not a remedy at all. The right to file the review petition is a Constitutional power as well as the inherent power of the court.
He said Section 47 (A) (2) of the Constitution would not be applicable to Mollah as Article 105 of the Constitution as well as the rules of the Appellate Division allowed convicted persons to file review petitions against the apex court verdict.
Article 105 of the Constitution says 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.
Explaining the Article, Razzak said that the Article did not mention anything about remedy; rather the inherent power of the Appellate Division was specifically mentioned. Hence, Mollah has the right to file review petition against its verdict, he asserted.
In response to Razzak’s submission, two judges — Justice SK Sinha and Justice Shamsuddin Manik — of the Appellate Division bench raised a saying that the inherent power of the court was included with a condition, which was added in the ICT law.
“The ICT did not impose an embargo on filing the review petition against its verdict,” Razzak told the judges in his reply.
That Section 47 (3) of the Constitution would not be applicable to those people who have been convicted for war crimes has been specified by only three Sections — 31, 35 and 44 — of the Constitution. However, the rights of Article 105 of the Constitution would be applicable to Mollah. So he has the rights to file a review petition, Razzak added.
Referring to the rules of the Appellate Division that allowed the convict to file a review petition against the apex court verdict, Razzak said the tribunal did not award the death penalty to Mollah; rather, the Supreme Court awarded him the death penalty, revising the tribunal verdict.
“We don’t challenge the tribunal verdict; rather we came here against the Supreme Court verdict in accordance with the Appellate Division rules,” he noted.
Earlier, in the morning, the defence filed a petition seeking time till January 2 next year for their preparations.
On the other hand, the attorney general’s office filed another petition for vacating the Chamber Judge’s order over Mollah’s execution.
However, none of the petitions was allowed by the court.
Regarding the time petition, Razzak told the court that they needed at least two days’ time for preparations as they could not make preparations for the review hearing.
“After getting the copy of the apex court verdict on December 8, we have been making preparations for filing a review. It was an old case. Hence, we need more time to make preparations,” he added.
But the attorney general opposed his submission and said the review petition is not maintainable before the court.
Later, the court held the hearing till 1.00pm on the acceptance of the review petition, which would also continue on Thursday morning at9.00am.
-With The Independent input
