The Appeal hearing in the case of Jamaat-e-Islami’s life-term convict Abdur Quader Mollah is likely to end Tuesday, with the state placing arguments.
The chief defence counsel of Quader Mollah conducted his part of argument Monday. Earlier in the day, seven amici curiae ended, giving their opinion in the case at the five-member bench of the Appellate Division headed by Chief Justice Md Muzammel Hossain.
Abdur Razzaque, chief counsel of the Jamaat leader, said the apex court has the inherent power to enhance or reduce the punishment. He earlier said the amended International Crimes (Tribunals) Act 1973 was not applicable for trying war crimes, as it was given retrospective effect.
Five out of the seven amici curiae (impartial advisers to a court in a particular case) observed that the recent amendment to the ICT Act, which gave the government the right to appeal against a verdict in the tribunal, shall be applicable in the case against Quader Mollah.
The amici curiae are TH Khan, AF Hassan Ariff, Rafique-Ul Huq, M Amir-Ul Islam, Mahmudul Islam, Ajmalul Hossain QC and Rokanuddin Mahmud.
Quader Mollah, the Jamaat assistant secretary general, was given life sentence on February 5 in two out of six charges brought against him for crimes against humanity during the 1971 Liberation War. Convicted of torture, rape, murder and mass killing, he is now in Kashimpur jail.
Amid strong public demand, the legislature amended the ICT Act law on February 17 giving same right of appeal to the government as the defence. Till then, only the defence was allowed to appeal against a conviction.
Both the state and the defence lodged their appeals against the tribunal’s verdict with the Appealed Division. The government appeal of March 3 sought capital punishment while the defence appeal submitted on March 4 petitioned for acquittal.
On June 20, the Appealed Division appointed the seven senior lawyers as amici curiae to deliver their opinion on two legal issues – whether the amendment of the ICT Act will be applicable in Quader Molla’s case, and if customary international law is applicable in the war crimes cases.
Five of the lawyers except TH Khan and Hassan Ariff said the amendment was applicable in this case, as the ICT Act has been given protection in Article 47(3) of the constitution.
Except Rafique-Ul Huq, the six lawyers said the Appellate Division can apply the interpretation of the customary international law (established state practice) but is not bound to do so. If any conflict occurs between the national laws and the international laws, the national laws shall be applied, they said.
Rafique-Ul Huq opined that customary international law is not applicable in domestic courts.
Former attorney general Hassan Ariff Monday said the amendment may not be applicable in the case of Quader Molla as the judgment had been delivered before the amendment was enacted.
But the Appellate Division has the power under Article 104 of the constitution to enhance the sentence if complete justice demands so. He said this amendment is valid for other war crimes cases too since the constitution gives protection to it.
On the customary international law, Hassan Ariff echoed Rafique-Ul Huq.
Mahmudul Islam, Ajmalul Hossain QC, Rokanuddin Mahmud and Hassan Ariff opined that the Appellate Division has the power to enhance the sentence of Quader Molla even if there was no appeal against the inadequate sentence.