The Supreme Court (SC) on Tuesday awarded the death penalty to Jamaat-e-Islami leader Abdul Quader Mollah on charges of crimes against humanity committed during the War of Liberation in 1971. A five-member bench of the Appellate Division, led by Chief Justice Md Muzammel Hossain, entered the courtroom at 9.32 am and delivered the 4:1 majority verdict.
The Chief Justice pronounced the verdict in a jam-packed courtroom at 9.35 am. The four other members of the bench are Justices Surendra Kumar Sinha, M Abdul Wahhab Miah, Syed Mahmud Hossain and AHM Shamsuddin Chowdhury.
This is the first time that the Appellate Division of the Supreme Court has delivered judgment on an appeal in a war crimes case.
In its short order, the apex court said, “Criminal Appeal No. 24 of 2013 filed by the Government is found to be maintainable unanimously. This appeal is allowed by majority.”
“The order of acquittal passed by the International Crimes Tribunal No. 2 in respect of charge No. 4 is set aside by majority and the respondent is found guilty of the said charge. He is sentenced to imprisonment for life on that charge,” the verdict said.
The verdict read out by the Chief Justice also said, “He is sentenced to death by the majority of 4:1 in respect of charge No. 6. He will be hanged till death. Criminal Appeal No. 25 of 2013 filed by Abdul Quader Mollah is dismissed unanimously.”
The short order also said, “The conviction in respect of charge No. 6 is maintained unanimously. The conviction and sentence passed in respect of charges No. 1, 2, 3 and 5 are maintained by majority of 4:1.”
Earlier, the International Crimes Tribunal had handed down life imprisonment to Quader Mollah for charge No. 6, which said that on the evening of March 26, 1971, Mollah had led some Biharis and Pakistani soldiers to kill one Hazrat Ali and five members of his family in Mirpur.
The highest court of the country found imprisonment for life too lenient a term for killing Hazrat Ali and his family members in Mirpur during the 1971 Liberation War and ordered that the Jamaat assistant secretary general be hanged till death.
Apart from the death sentence, Tuesday’s verdict of the Appellate Division brought another major change to the International Crimes Tribunal judgment relating to charge No. 4.
According to charge No. 4, on November 25, 1971, an organised attack and indiscriminate firing by Mollah and his cohorts killed hundreds of unarmed people of Khanbari and Ghatar Char villages in Keraniganj. Mollah was found not guilty and acquitted in respect of charge no. 4, according to the tribunal verdict.
But the apex court found Mollah guilty of killing hundreds of people at Ghatar Char and Bhawal Khan Bari in Keraniganj and awarded life-imprisonment for the offence.
However, the apex court upheld the tribunal verdict by majority (4:1) in connection with four other charges — 1, 2, 3 and 5 — brought against him on charges of crimes against humanity committed during the Liberation War.
According to charge no. 1, on April 5, 1971, Mollah had instructed Akhter Gunda, one of his aides, to kill Pallab, a student of the Bangla College and an organiser of the Liberation War.
According to charge no. 2, on March 27, 1971, Mollah and his aides had murdered pro-Liberation poet Meherun Nesa, along with her mother and two brothers, at their home
in Mirpur-6 of Dhaka.
According to charge no. 3, on March 29, 1971, Mollah, accompanied by Al-Badr, Razakars and Bihari men, had apprehended journalist Khondoker Abu Taleb and slit his throat at the Mirpur Jallad Khana Pump House.
According to charge no. 5, on April 24, 1971, Mollah had led Pakistani army personnel and around 50 Biharis to launch an attack on unarmed people of Alubdi village in Mirpur. The attack resulted in the deaths of 344 people.
Mollah, who is assistant secretary general of Jamaat-e-Islami, now stands guilty of all the six charges which the investigators had pressed against him.
Chief defence counsel, Barrister Abdur Razzaq in his immediate reaction said, “We are aggrieved, surprised, and we think the verdict is against justice”.
He mentioned that it was ‘unprecedented’ in the history of Bangladesh that the SC has awarded death penalty to Mollah although the trial court had sentenced him for life.
“We will file a review petition within 30 days of receiving the full verdict,” he added.
On the other hand, Attorney general Mahbubey Alam told reporters that there was no opportunity to file a review petition against the verdict, but the defence could seek presidential mercy.
He also said that the legal process had ended with the appeal verdict and that Molla could only seek mercy from the President.
He will be hanged if the President rejects his mercy plea.
“This special Act has been formulated by Amending the Constitution. It says the tribunal will try cases and gives opportunities for appealing against the verdict with the Appellate Division.
“The Act does not give any other opportunities. And so there is no opportunity for review,” said the Attorney General.
Law Minister Barrister Shafique Ahmed also gave the same opinion saying there was no scope for convicts tried under International Crimes (Tribunals) Act, 1973, to file petitions with the Supreme Court seeking a review of its verdict. The law minister spoke to media persons at his secretariat office while the attorney general met reporters on the Supreme Court premises soon after the verdict.
About the presidential clemency, Barrister Shafique said that before the execution of the verdict, the jail authorities would give the convict time to pray for presidential pardon. The President had the Constitutional power to grant clemency, he said.
But some eminent lawyers differed with the view of the Attorney General and the law Minister on the issue of the scope of the review.
Eminent jurist Barrister Rafique-ul Huq told The Independent that as per the Constitutional provision, there was a provision to file a review petition with the apex court within the stipulated time.
“As per the Constitutional provision as well as the Supreme Court Rules, the convict can file a review petition,” he noted.
“There is no bar to filing a review petition against the verdict as the Appellate Division’s Rules allow a convict to file a review petition within 30 days of pronouncing a verdict. If a convict files an application seeking a certified copy of the verdict, then the convict will get 30 days from the date of receiving the copy of the verdict,” he added.
Another prominent lawyer Advocate Anisul Huq said, “Although there is no provision for filing a review petition in the ICT Act, a convicted person’s fundamental and Constitutional rights allow him to file a review petition with the apex court.” As per the Constitution, a convict could file a review petition with the apex court as the Constitution was the supreme law and everyone was bound to respect the Constitution, he added.
Noted lawyer Barrister Shahdeen Malik told The Independent that a review was not a matter of rights “in the sense that a convict cannot claim a review”.
He also said, “The Appellate Division has hardly ever changed its decision on review. Hence, a review does not usually give any different result.”
Malik said that there was no result from the review petitions in the past five years.
However, he also said that there was no legal bar to filing a review petition with the apex court. Both the government and the defence had appealed against the life-imprisonment handed down on February 5.
After concluding the hearing on the appeals from both sides, the five-member bench of the Appellate Division on July 23 kept the matter for delivering the verdict.
During the appeal hearing, the chief defence counsel, barrister Abdur Razzaq, raised a legal question before the SC, arguing that the government’s appeal would not apply to Quader Mollah’s case as it was not filed in accordance with proper legal procedures.
Following this, the Appellate Division bench of the Supreme Court, on June 20, appointed seven amici curiae (friends of the court) for legal opinion on two issues — whether the trial of war crimes should fall under the purview of the international customary law and whether the amendment of the International Crimes (Tribunals) Act on February 17 should come into effect from July 14, 2009.
The seven amici curiae were TH Khan, Mahmudul Islam, Rafique-ul Huq, M Amir-Ul Islam, Rokanuddin Mahmud, AF Hasan Ariff and Ajmalul Hossain, QC.
All the amici curiae have submitted their opinions before the apex court. However, the amici curiae made contradictory statements over the issue.
The apex court appointed the lawyers following some questions raised during the hearing on the government appeal filed under the amended provision of the International Crimes (Tribunals) Act, 1973.
The government filed the appeal following an amendment to the ICT Act on February 18 that had cleared the way for filing appeal with the apex court against the tribunal’s inadequate sentencing of a convict.
Following the Shahbagh protests, the government had amended the ICT Act, providing for equal rights of appeal by both the convict and the prosecution. Earlier, the prosecution could not appeal, barring cases of acquittal of the accused. After bringing the amendment to the ICT Act, the government, on March 3, had filed an appeal with the apex court against the ICT’s verdict, seeking death penalty for war crimes convict Abdul Quader Mollah.
On March 4, a day after the government’s appeal, the defence side filed an appeal with the Supreme Court against the ICT verdict, seeking an acquittal order for Quader Mollah.
On February 5 this year, the ICT-2 handed down life imprisonment to Quader Mollah in connection with two charges.
After hearing the appeals, the apex court today rejected the convict’s plea. Since January, two war crimes tribunals have delivered verdicts in cases against six former and current Jamaat leaders. The Quader Mollah appeal case was the first one that was disposed of by majority today.
-With The Independent input
