The Appellate Division has clearly stated that the execution of war criminal Abdul Quader Molla could not take place until disposal of the Jamaat leader’s plea filed seeking review of the death sentence.
It said no further order was required to halt the execution as the matter was pending at the apex court.
The top court yesterday heard both sides over the maintainability of the petition filed in the morning as there is no provision of review in the International Crimes (tribunals) Act, 1973.
At the end of proceedings, the five-member Appellate Division bench that passed the verdict on September 17 adjourned the hearing until today. Usually, the apex court starts its sessions at 9-9:30am and lasts until 1pm.
Later, Attorney General Mahbubey Alam told reporters that Quader Molla would not be hanged until the plea was disposed of, “since the government has respect towards law and judiciary.”
For the first time in the country’s history, execution of a death row convict was halted by the chamber judge of the Appellate Division, in absence of the government lawyers, hours before the Jamaat leader was set to be hanged on Tuesday.
The government around 7:40pm on Tuesday made it clear that Quader Molla would be hanged by midnight and the family members were asked to meet him for the last time. Then the defence lawyers meet Justice Syed Mahmud Hossain, the chamber judge, and secured a stay order on the execution until 10:30am yesterday.
The attorney general and other government counsels were present in the court while the defence team had a number of counsels including Abdur Razzaq, Khandker Mahbub Hossain, Zainul Abedin and Mizanur Rahman.
The defence earlier never appeared before the court during the days of hartal or blockade. Their repeated non-appearance at the war crimes tribunals has hampered the trial proceedings. Yesterday they went to the Supreme Court on ambulance which is out of the purview of hartals and blockades.
The bench comprising Chief Justice Md Muzammel Hossain, Justice Surendra Kumar Sinha, Justice Md Abdul Wahhab Miah, Justice Mahmud and Justice AHM Shamsuddin Choudhury Manik took their seats at 9:56am.
At the outset of the hearing, the chief justice urged media to be responsible in circulating any information. Many electronic media on Tuesday night reported that a meeting was held between the chief justice and the attorney general after the execution had been stayed by the chamber judge.
Attorney General Mahbubey Alam told the court: “The Attorney General’s Office was not informed officially about the matter yesterday.” Then the court asked him to skip the matter and speak on the stay petition.
The attorney general said: “The stay order is not correct as there is no scope to file a review petition as per the constitution and the tribunal law.” He said: “I vehemently oppose the stay.” He also submitted a petition challenging the stay order.
Then the chief justice asked the defence to start hearing on the review plea. Chief defence counsel Razzak told the court that they needed time for taking preparation as they got the certified copy of the full text of the verdict on December 8.
The court, however, expressed disappointment and asked why they had not taken preparation since the death sentence was pronounced on September 17.
Razzak pressed for allowing two days which the attorney general opposed. Mahbubey Alam reminded that today would be the last working day of the Supreme Court before winter vacation.
As the chief defence counsel requested the court several times, it adjourned the hearing for an hour from 10:35am. The defence also asked the court to pass an order so that the jail authorities could not hang Quader Molla. The chief justice said it was not needed.
The court resumed its proceedings at 11:34am with the attorney general placing his arguments against the review petition.
Referring to articles 47(3), 47A, 103 and 105 of the constitution as well as sections 21, 24, 26 of the ICT Act, he said there was no scope of filing a review petition against the Appellate Division verdict for anyone who was convicted for committing crimes against humanity, genocide and war crimes. He said a war crimes convict could not move to the Supreme Court seeking any remedy.
In his counter-argument, Razzak said the review was not a remedy but a matter of applying inherent power of the apex court.
Justice Sinha then said the inherent power was conditional. He cited article 105 of the constitution that states: “The Appellate Division shall have power, subject to the provisions of any Act of parliament [ICT Act, 1973] and of any rules made by the division [Appellate Division Rules, 1988] to review any judgement pronounced or order made by it.”
Justice Manik said: “Inherent power is not superior to the constitution.”
Razzak then claimed that nowhere in the tribunal law was stated that a review petition could not be lodged.
After the deferral, pro-Jamaat lawyers coming out of the bench chanted slogans protesting the death sentence of Quader Molla.