Intl bar assoc finds 17 flaws in IWCT
Faisal Rahim
Writ on IWCT
Meanwhile the Judiciary is failing not only to protect the basic rights of the people but also the religious faith of the majority of the nation, critics say pointing to new developments in the countrys political ground.
In a separate development, a High Court bench, however,
recently dismissed a writ petition challenging the appointment of two High Court judges to a lower level tribunal [International War Crime Tribunal (IWCT)] saying it is a violation of the Constitution and freedom of the countrys highest Judiciary.The bench comprising Justice Mamnoon Rahman and Justice Syeda Afsar Jahan passed the dismissal order after holding hearing on the petition.
The writ filed by former vice-president of Bangladesh Supreme Court Bar Association advocate Nowab Ali and former secretary AFM Sulayman Chowdhury sought the court intervention saying the presiding judge of the IWCT Nizamul Haque and its member ATM Fazle Kabir are sitting judges of the High Court wing of Bangladesh Supreme Court. They said, they represent the countrys highest judiciary, an independent organ of the government empowered directly under the Constitution. The writ argued that all other courts including the IWCT in the country are subordinate to the highest judiciary.
But here the two judges by taking seat at the IWCT have not only taken positions at a lower level which is inconsistent with the dignity and independence of the Supreme Court Judges but also violation of their oath for not taking the office of profit.
The petitioners said the President of the Republic appoint the Supreme Court Judges in the High Court division and also put them to Supreme Court Bench on promotion. Such Judges can not be appointed to tribunals at lower levels, they said making the point that the appointment of the two High Court judges to the tribunal moreover, has been signed by the Law secretary bringing them under the direct control of the political government.
Political nexus
Moreover, the appointment of a junior Judge to preside over the tribunal with a senior High Court judge to work as a member is not only violation of the norms, it clearly shows the political nexus in such appointment to deny a fair trial.
The principal lawyer Barrister Abdur Razzak told the court that the writ in no way has been poised to overshadow the war crime trial but to make sure that the court has been properly constituted to give fair justice to persons who may come for prosecution without prior political prejudice.
Barrister Razzak, the counsel for the petitioner aid he would lodge appeal to the Supreme Court on the High Courts order dismissing the writ.
The International Bar Association (IBA) has raised similar observations in comments on the IWCT constituted by Bangladesh government pointing to at least 17 flaws and suggested that these shortcomings should be removed to make it at acquiring global standard.
In its observations the association has also questioned the credibility of the court suggesting that judges should be appointed in a free and fair selection process in which the accused should even feel free that they are facing a neutral court. Here this shortcoming remains not only a big issue but found the way to Supreme Court in the form of a writ.
Two-way traffic
Some lawyers say the government is using the IWCT as two- way traffic by appointing the High Court judges to the tribunal. In the first place it has taken the judges to the tribunal with pay as a post of profit but also using the card that since they are High Court Judges their judgment can not be taken for rehearing in the High Court. It can only be put to the Supreme Court for a review. Thus the accused may be denied of a fair justice and noted jurist T H Khan said he was afraid it might be going to be a kangaroo court in which the entire prosecution will be prejudiced denying a fair trial.
Under this circumstance the IWCT started hearing war crime charges against five Jamaat leaders in its newly established court in the Supreme Court compound.The court opened the process entertaining a plea to issue arrest warrant against the top Jammat-e-Islami leaders on charges of crimes against humanity.
The Jammat leaders, Maulana Matiur Rahman Nizami, Ali Ahsan Mohammad Mujahid, Abdul Kader Mollah and Qumruzzaman, are already in police custody along with Delwar Hossain Saidy.The courts chief prosecutor Gulam Arif Tipu moved the plea to put them on arrest in cases relating to war crimes suggesting that otherwise they may flee the country.
Defence lawyers have however questioned the arrest warrant and their subsequent status as shown arrest as violation of the IWC Act which allows such arrest only after framing of charges against the accused. The Act does not allow arrest during investigation.
Noted lawyer Anisul Haque, who was in charge of prosecution of the Bangabandhu muder case, has also raised question of such preemptive arrest saying it is violative of the law.The case prosecutors however maintained that their arrest is essential not only to stop fleeing but also to allow free investigation.
Coercive forces
Jamaat leaders and other critics however believe that the government is using coercive forces to deny the accused of a free and fair trial to make it a highly politically motivated trial to ban Jamaat and religion-based politics from the countrys political turf.
At such a time the move by the swami to redefine the Muslims religious faith and the move by the government to ban religion-based politics may be a separate event or may have a nexus.
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