SC against trial under army act

BDR Carnage
SC against trial under army act
Sends its opinion to president
The Supreme Court does not approve of applying the army act to try those accused of mutiny and carnage at the BDR Pilkhana headquarters on February 25-26, sources said.
The apex court sent its formal opinion to the Bangabhaban yesterday afternoon.
Earlier on August 17, President Zillur Rahman asked the SC for its opinion on the mode of trial for the BDR mutineers.
First, the question was if the Army Act-1952 applies to trial of the BDR personnel charged with mutiny and bloodbath at Pilkhana headquarters.
If the answer was ‘no’, the question would be whether the army act can be made applicable through a notification issued under section 5 of the act.
Top officials at the Bangabhaban, SC and law ministry did not say anything officially about the court’s opinion.
But sources close to them confirmed the SC has indeed opined against trying the mutineers under the army act.
The offences committed during the BDR mutiny cannot be tried under the Army Act 1952, since its provisions cannot be applied to BDR personnel. Besides, the act does not provide for issuing any notification with retrospective effect, said the sources citing the SC opinion.
The full-bench Appellate Division that comprises Chief Justice MM Ruhul Amin, Justice Mohammad Fazlul Karim, Justice Md Tafazzal Islam, Justice Md Joynul Abedin, Justice Md Abdul Matin, Justice Shah Abu Nayeem Mominur Rahman, Justice Md Abdul Aziz, Justice BK Das, Justice ABM Khairul Haque, Justice Md Muzammel Hossain and Justice Surendra Kumar Sinha gave its opinion after six days’ hearing on the presidential reference.
Contacted last evening, Law Minister Shafique Ahmed told The Daily Star, “I have no knowledge of the Supreme Court’s opinion yet. I will know only when it will reach the ministry.
“The Supreme Court’s would be the country’s highest court’s legal opinion, and the government will follow whatever it may be.”
Meanwhile, secretary at the president’s office, Shafiul Alam, told The Daily Star that Bangabhaban received a sealed envelope from the SC soon after noon. He however said he doesn’t know anything about the opinion.
“The president has read the Supreme Court’s letter, and as per the procedures we have sent the court’s opinion to the law ministry by a special messenger,” added the Bangabhaban secretary.
The SC observed that its opinion made under article 106 of the constitution is no law or judgment, and it has no binding effect on future litigation.
The president is not bound by the opinion, but the advisory opinion is entitled to due weight and it may have great persuasive force, it continued.
According to the sources, the court also said its opinion is not a “law declared” and is therefore not binding on the High Court division or subordinate courts. However, it is usually expected to be followed.
Meanwhile, the Bangladesh Rifles authorities who had suggested the home ministry arrange for a presidential reference to be sent to the SC on the mode of trial would not pursue the government anymore for holding the trial under the army act, said BDR sources.
Some BDR sources said they believe it would not be wise to hold trial under the army act now that the SC has expressed its opinion against the idea.
“If the government still decides to try the mutineers under the army act, it will face numerous writ petitions and run the risk of having the trial proceedings canceled,” said a BDR source.
Against this backdrop, the BDR authorities may request the home ministry to have some mutineers tried under the BDR act and others who committed more grievous offences under the civil law, said a BDR official.
They would however keep asking the government to complete the trial as quick as possible.
“We would suggest a speedy trial tribunal for trying the mutineers. We would also request the government amend the BDR and other existing laws so the trial can be completed as soon as possible,” said the official.
The mode of trial became a much-talked about issue as BDR and the army, which lost its 57 top and mid-ranking officers in the mutiny, wanted the offenders to be tried under the army act.
Besides, the national and army probe committees on the bloody mutiny suggested the government hold the trial under the army act.
But different sections in the society strongly opposed the idea of trying BDR mutineers under the army act.
President Zillur Rahman on August 17 sent a reference to the SC seeking its opinion on whether the people charged with mutiny and massacre at the BDR headquarters can be tried under the military law.
“The offences of killing, attempts to murder, arson and looting that took place during the mutiny at the BDR headquarters, cannot be tried under the BDR Act. But, questions have been raised on whether the trial of the perpetrators can be held directly under the Army Act 1952 or the same law by issuing a notification as per Section 5 of the act,” the reference said.
The highest punishment under the BDR law is seven years’ imprisonment while it’s death penalty under the military law, it mentioned.
The SC appointed ten eminent lawyers as amicus curiae (friend of the court) to give their opinions on the issue.
Of them, seven opposed the idea of trying BDR mutineers under the Army Act, two were in favour of the idea and one refrained from giving any opinion.
The seven amici curiae opposing trial under the Army Act are — Dr Kamal Hossain, advocate TH Khan, barrister M Ameer Ul Islam, advocate Mahmudul Islam, advocate AF Hassan Ariff, barrister Ajmalul Hossain and advocate AFM Mesbahuddin.
Barrister Rafique-Ul Huq, advocate Khandaker Mahbubuddin Ahmed backed the idea of holding trial under the Army Act.
Barrister Rokanuddin Mahmud did not gave any opinion but suggested returning the reference to the government.
The SC had been holding hearing on the reference since August 25 and completed it on September 3.
However, State Minister for Law Qamrul Islam yesterday said he was unaware of the SC’s opinion on the reference.
He told journalists that everyone should respect the apex court’s opinion on trial of the perpetrators of massacre at the BDR headquarters.
Replying to a query, the state minister said, if the SC is of the opinion that the trial cannot be held under the Army Act, the government will decide whether it can be held under the existing laws.
“But the decision will be made after holding a meeting with the BDR and army officials and also the chief prosecutor of the case and others concerned,” the state minister said.
The government will complete the trial within a short time, he added.

Courtesy of The Daily Star