On Fri, Dec 13, 2013 at 4:42 AM, Syed Abdul Bais <agent.of.the.change@gmail.com> wrote:
--What is happening to Quader Molla. Updated when new information comes in
You will need to update your page
THURSDAY1.12 am: Preventing Molla a proper defense - restricting defence witnessesI want to finish this blog tonight with one further set of thoughts.I said earlier (7.02 pm) that there were two key reasons why I thought that the execution of Molla was highly objectionable. The first one was the total lack of credible evidence for the crime for which hw was put to death (discussed earlier). The second reason is to due to the preventing Molla from putting forward a proper defence. Molla was restricted to only 5 witnesses, whilst the prosecution could bring as many as they wished – in fact they brought 12.
What was the justification for this restriction. You really would not believe this - but the tribunal said that it wasnot the job of the defence to knockdown the prosecution case, or to discredit prosecution witnesses or to question their credibility. All the burden of proving the case was on the prosecution, so the defence did not have any reason to bring witnesses for that. The only witnesses that they were allowed to bring were alibi witnesses, and five, the tribunal thought was enough.
I doubt there is any criminal justice system in the world – in fact normal Bangladesh law does not even support this principle – that follows this rule that the defence has no right to bring witnesses to discredit the prosecution case.
But that is what happened at the tribunal And the really worrying thing for Bangladesh is that the appellate division did not disagree with this. Is this now the principle of law in Bangladesh.
The tribunal's logic is that since it is for the prosecution to prove the charges, the accused lawyers have no role in disproving them - by doing such annoying things like bringing witnesses.
This is rather extraordinary. Yes, the burden is on the prosecution to prove its case 'beyond reasonable doubt', but this in no way means – and Bangladesh law has never stated otherwise - that the defence cannot bring witnesses to discredit different elements of the prosecution case, and show, for example, the unreliability of prosecution witnesses.
Doing so is a completely standard defence practice in just about any country around the world – including in Bangladesh.
The need for the prosecution to prove its case 'beyond reasonable doubt' cannot be turned into a rule that prevents the accused from disproving the case against him or her.To read about this more fully, look at this article: Are the Tribunals Justified in restricting witness numbers
12.02: Reports that Ershad arrested may not be correctColonel Ziaul Hasan, Addition DG of RAB, has said, 'Ershad was not arrested, He was taken to Combined Military Hospital in the cantonment'.
11.43 pm: BREAKING - Report that General Ershad has been arrested, waiting for further confirmation
11.29 pm: Molla's son apparently arrested
Molla's lawyer reports that he had spoken to one of the sons of Molla who told him that police came to the house in Dhaka and arrested another son, Moudud, a number of other relatives and two personal assistants. Police have told them to send someone to police station and they will consider releasing them
11.08 pm: Molla's family house in Dhaka has reportedly been surrounded by members of the student wing of the Awami league who are not letting family out of house, and are banging on the gate
11.07 pm: The lawyers for Molla have said that the government is not giving the body over to the family. Jail officials have told the family that they will take the body themselves to Faridpur, the ancestral home of Molla, and bury the body themselves.
10.50 pm: Official confirmation of hanging
Deputy Commissioner Dhaka has confirmed to New Age reporter that Molla was hanged at 10.01 pm
10.40 pm: According to jail code the body must remain hanging for 30 minutes before being taken down
10.28 pm: Large number of vehicles with armed police enters inside jail
10.17 pm: Still no official confirmation of hanging
10.16 pm: ATN News appears to show picture of noose inside the jail (without body)
10.14 pm: TV news stations all reporting that Molla executed. Ambulance gone into prison - to collect body reporters assume
10.10 pm: Unofficial reports suggest that Molla has been executed
9.58 pm: Execution perhaps at 10 pm, in a few minutes
Another reliable source now saying that execution could take place in next few minutes
9.40 pm: Molla execution looking to be imminent (see below)
9.35 pm: Why the execution now?
Before this week started and anyone asked me what I thought would happen to Molla, my standard answer was that I did not think that the government would go ahead with an execution before the elections unless it wanted a rationale to announce a state of emergency. At that time my thinking was as follows: if there was competitive elections with the BNP, then arguably it could serve the AL's political interests to hang Molla, as it would at least make enthuse its political base essential for an election. But since the elections are not going to be competitive, with just the AL and a few of its small party allies taking part, I could not see much of an advantage for the AL - and in fact why would they do something like executing Molla which would open up a new violent front against it.
Of course, if the AL wanted an excuse to call a state of emergency then executing Molla would be the perfect thing to do. Execution, would be followed by widespread violence (over an above the existing unstable situation) and that this could provide the AL an excuse to call in the army, blaming the Jamaat at the same time.
When suddenly, the execution was announced on Tuesday, it suddenly appeared, with the US Asst Sec General in town, that there might be another explanation. I had around that time heard numerous reports that the UN diplomat had made progress, and that he had come with a plan, that many in both parties accepted, the prime minister would be relieved of her executive powers, with the president taking them over. It seemed plausible that perhaps the Molla execution was a sign that a political deal was in the offing and that the prime minister wanted to deal with the execution quickly before she lost her executive powers. (see 6.55 pm, Tuesday).
A diplomat that I spoke to scoffed at the above idea and thought that it was more likely the Awami League was trying to put the BNP into a difficult position. If it sided with the Jamaat, the AL could blame it for the violence and for leaving the dialogue (assuming it did that). If the BNP did not support Jamaat, their alliance would be put under strain. (see 8pm, Tuesday).
By view now is as follows:
- although there is no competitive election, the AL needs to enthuse its base, at least to make sure its supporters come out at the election. Molla's execution would help with this
- the war crimes trials was an election commitment, and one that the party needs to show that it fulfilled. An execution, would be the perfect example of this
- the AL leaders must feel pure hatred for the Jamaat and the role that they have played in supporting the BNP's seige and other opposition activities. The execution would be payback.- who know what will happen in the future, so best to get it done with
- and of course it will be useful in putting the BNP in a difficult position (as stated above) and also could provide a rationale for emergency (if they wanted to use it)
9.33 pm: Key personel inside jail for execution
District magistrate, Imam and Civil Surgeon inside the jail
9.28 pm: Execution appears to be imminent
Others reports suggest that execution could happen at 10.01 pm but no formal confirmation at present
9.23 pm: Defence lawyers not allowed to see Molla
Defence lawyers are reporting that the jail authority has rejected their application to meet Molla and that unofficial sources are telling them that the execution will take place soon.
8.51 pm: Molla seeks meeting with lawyers
After meeting up with Molla in jail, his family have told reporters that he would like to consult his lawyers to decide on whether to apply for clemency, and the lawyers have submitted an application to the jail authority for a lawyer's visit.
7.05 pm: Why Molla should not be executedThis blog contains neutral and independent news, analysis and commentary on the Molla execution issue, but let me be very clear about my own position on the imposition of the death penalty of Quader Molla. I am very much against it.Yes, I do not support the death penalty, but that is not why I am against the execution of Molla.Yes, I think there are many legal inadequacies in the International Crimes (Tribunal) Act 1973, but that is also not the reason? Yes, I am aware of the many controversies and scandals that have taken place at the tribunal (including the abduction of a defence witness, the release of skype conversations/e-mails showing at least one of the tribunal judges in collusion with the prosecution and the government, and at least 6 tribunal investigators and prosecutors seeking last month Awami League parliamentary seats) – but again these controversies, and there are many more, are not in themselves the reason why I object to Molla's death penalty.
The reason for thinking that it is outrageous to put Molla to death is because of the flimsiness of the evidence on the charge which he has been sentenced to death and the fact that the tribunal simply did not allow him to put forward his defence, restricting his witnesses to five.
On the evidence issue (I will discuss the witness issue later) , please look below at Tuesday at 7.05pm which details the situation.What we have is as follows: a witness, giving evidence in court 42 years after the event stating that Molla was present, who had previously given two statements - one to a 1971 museum and another to the investigation officer - neither of which stated that Molla was present at the scene, and one of which stated that she was not even present at the time of the incident.6.15: Warsi wins award for most mundane quote
And we have a court – both tribunal and appellate division – who have decided not to take into consideration any of these previous statements which do obviously raise issues about the credibility of the witness.
Added to this, there is the fact that Momena, who was 13 years old in March 1971, had a breakdown after the murder of her family and, as far as the evidence shows, had never in the 42 year period between then and the time she gave her testimony in court, mentioned to anyone that Molla was present at the time her family was killed.
If all of this had been known by the investigation and prosecutors, there is surely no way that a case like this, would ever have resulted in a prosecution in most jurisdictions - yet alone going to trial and resulting in a conviction or execution.Can there be a more mundane statement about war crimes by a British minister in Bangladesh right now? A colleague sent me this 'key' quote that she just gave at her press conference.
'Of course we believe and always have that people involved in political crimes should face justice and that there cannot be a culture of impunity for those who committed these horrendous crimes and that people need to account for crimes they committed .... but UK has very clear position on the use of death penalty. We oppose it in every country.Not a comment about the fairness or the process of the trial. It is a pointless comment which the Bangladesh government will be very happy to hear. And there is DFID giving millions of pounds to the Bangladesh government for reform or the police ....Two days ago the FCO gave a relatively good one (see 8.44pm on Tuesday)
6.02 pm: Important to remember that there remain many in Bangladesh who very much support the execution of Molla
5.57 pm: Copy of short order
Here is a copy of the short order. Nothing more than what is mentioned earlier in the blog (12.47 pm)
5.35 pm: When will the execution take place
Still remains uncertain when the execution will be carried out. It could be tonight, although the government may try to exploit maximum political capital (for their own supporters) from the execution by doing it on the symbolic days of 14 December night (the day when many intellectuals were killed by Al Badr/Pakistan military in 1971) or 16 December (the day in 1971 when the Pakistan army surrendered). The government has in the past used the days of 25 March (independence day) and 16 December (Victory day) to set up the tribunal and arrest people, and it is quite possible that the government could do the same this year. You may remember in the skype conversations, the government was putting pressure on the tribunal to impose the first sentence against Golam Azam/Delwar Hossain Sayedee in December 2012.
Of course, the very fact the government could even choose to try to obtain the maximum political/symbolic advantage from a state execution is rather hideous - but this is where we are right now in Bangladesh.
Since the jail code does not apply, no-one knows what are the rules by which he will be put to death - whether or not the family for example will be informed.
5.20 pm: Warsi Press Conference
Warsi should be in the middle of a press conference at the British High Commission. Unfortunately I was not able to go, but will report as soon as I have some information.
5.11 pm: Execution can take place at short notice
Newspapers are reporting that the appellate division order relating to Molla has reached Dhaka Central Jail and that the execution can take place at short notice. The family have sought to meet Quader Molla again before he is put to death
3.30 pm: Warsi meets PM
UK embassy confirms that senior foreign minister Baroness Warsi (see below) has met up with the prime minister, Sheikh Hasina this morning. The embassy at the moment is being tight lipped about what she said. However according to other diplomatic sources, Warsi informed Hasina about European Union concerns relating to death penalty, particularly in the context of the impending Molla execution. No doubt, of course, she spoke about other things as well - she is here to look at the election issue and related violence! I think they met at 11.30 am, so this would have been before appellate division passed its order dismissing defence appeals.
2.54 pm: Baroness Warsi in Town
Baroness Warsi, Senior Minister of State at the UK Foreign & Commonwealth Office arrived in Bangladesh this morning! I wonder what she is doing today?
2.49 pm: Human rights Watch calls for halt of execution
Strongest statement yet from Human Rights Watch - and it needs to be. Picks up on a number of points, including the one just set out below about lack of independent appeal of death sentence, and the factual weaknesses in the case.
Human Rights Watch has long supported justice for war crimes committed in Bangladesh's 1971 war of liberation. Those responsible should be brought to justice through fair trials that meet international standards. Human Rights Watch opposes the death penalty in all circumstances.Human Rights Watch calls on Bangladesh not to carry out the execution of Abdul Quader Mollah and deplores the fact that he will be executed after an unfair trial and denial of a full and impartial appeal of his conviction. Mollah was accused of atrocities in the 1971 war of liberation and was originally sentenced to life in prison. The government pushed through changes in the law with retroactive effect that allowed the prosecution to appeal the acquittal. Mollah was sentenced to death on the basis of the testimony of a woman who was 12 years old in 1971 and had changed her story. Human Rights Watch said that many governments and the United Nations have called on Bangladesh not to impose the death penalty in this case and expressed concern about the conduct of the trial. Human Rights Watch takes no position on Mollah's guilt or innocence, which can only be established after a fair trial.
"War crimes verdicts have already led to major protests and violence this year," said Brad Adams, Asia director at Human Rights Watch. "A hanging in such a controversial case in a volatile political atmosphere in the run-up to national elections will likely lead to large numbers of deaths, injuries and property damage. Many observers believe that the government wants an execution so close to the election in order to score political points. The government should not act irresponsibly at such a volatile moment. The government and protest leaders must take all possible steps to avoid violence."2.45 pm: The government's position is now stronger, but it was no independent appeal
Interestingly, whilst many of Bangladesh's pro-hanging brigade were very critical of the stay of execution, they and the government are now in a much stronger position with the review application having been heard by the court. They can now say that Molla had his right to review, and the court rejected it on merits.
This of course sounds good. In fact of course, it was only a review, not an appeal. A review in front of the same judges who gave the death sentence, who only published their judgment less than a week ago! The defence were having to try to persuade these same judges who had passed the death sentence to say 'yes, we had made a terrible mistake and Molla now does not need to be hung!' It was never ever going to happen.
Important to note. This was not an independent appeal of the death sentence decision
2.15 pm: Short order being signed
A defence lawyer informs me that the appellate division's short order dismissing the defence reviews is now being written up and signed, and will probably be ready to be sent to jail authorities today. This will in effect vacate the stay of execution, and the jail authorities probably will only require a new government order to undertake execution.
1.26 pm: Will Molla's execution result in more deaths? Do we care?
One man, Molla will be executed by the state, and the question is - how many further deaths will also be directly caused by the state's decision to execute him (and, of course, no one will be brought to justice for any of those). I do hope that the authorities are cognisant of the likely violence that will take place if Molla is executed in these febrile and unstable times in Bangladesh, and have measures in place to ensure that people are not killed. Clearly those who are involved in violent recrimination are responsible for their actions - but I would argue that the state also has a responsibility not to do something, like execute Molla, if it could result in significant numbers of innocent people dying.
Any thoughts anyone?12.53 pm: The written order?
After the order was read out the Attorney General got to his feet and asked whether they could issue a short order'. According to lawyers close to the judge's bench, Justice Sinha said, 'No short order is required as it was dismissed without observations'. And the chief justice then said that 'the order would be communicated to the jail authorities according to law'
I spoke to Abdur Razzak a few minutes after the order and he said that he was trying to understand the implications. 'The judges did not say that they were going to issue a short order'
The Attorney General, said that no short order was required.
There is a stay of execution, imposed by an order of the court. In order for the stay order to be vacacted, there needs to be an order written and given to the jail authorities.
12.47 pm: The court order
The chief justice simply read out the following order: 'Both Review petitions, 17 and 18 are dismissed.' There were no observations.
Breaking: Defence applications dismissed11.55 am: Court adjourns again 'for a few mins'11.52 am: Razzaq makes further argument that by law, sentence can only be changed if 'manifestly inadequate and unduly lenient' but that appellate division judgment only says life imprisonment sentence imposed by tribunal was 'inadequate'. Attorney General not seek to respond to that point.Why does AG not respond on that point?11.10 am: in summary defence argued that court made apparent error on face of record when not allow statement, which Momena, the sole witness in death penalty charge, had given to investigation officer, to be taken into account by court.In that statement to IO, Momena did not mention that Molla was present at scene when family murder took place.Also argued that court has powers 'for total justice' to consider whether jail code should apply, and that execution warrant defective.11.02 am: Court adjourns after hearing defence and government arguments. Starting again at 11.30 am, where Defence given opportunity to provide ten mins summary of arguments.9.40 pm: Maintainability allowed
Breaking news: appellate division agrees that Defence review application can be heard by court. Now Defence arguing on merits
8.50 am: What will happen today in court
The appellate court hearing will continue this morning, from around 9.30am, with the chief defence lawyer, Abdur Razak continuing his arguments as to why the court should consider its review of the appellate division judgement (see below, 7.20 pm, Tuesday).
If he is successful, the court will hear the merits of the arguments - probably straight away. (It is also possible that the court may hear the substantive arguments about review before deciding on whether the application was in fact maintainable)
I understand that the defence will be filing or have filed an 'additional paper book' in which it will raise additional issues. These deal with additional matters supporting its review application, and also arguments, that are outside the purview of the review - that the warrant of execution was faulty and the jail code should apply to Molla
The issues about the warrant of execution and the jail code are not issues that are before the court as part of its application for review - however, the defence are likely to be hoping that if the review is found not to be 'maintainable' in court or is refused on merits, the court will take into account its arguments about the warrant of execution and the jail code.
The impact of the alleged defective warrant and the jail code are not in any way to bring the execution to an end - but to delay when it might take place.
The defence arguments about the warrant of execution are set out here in an earlier post
The arguments about the jail code relate to (a) whether it applies or not to Molla or (b) if so, whether it is the old code or the amended. The amended code - which apparently the prison authorities are saying has not been 'approved' - provides 15 days (rather than 7) for the time in which a person can seek presidential pardon.
Today is the last day of the appellate division before it goes on winter holidays until the beginning of January. So it is very significant. If the arguments are not completed by the end of the day, Molla will have at least a reprieve until 2 January 2014 when court reopens.
WEDNESDAY10.59 pm: The V-sign?
Another somewhat amusing aside, amongst what is obviously a very serious business, are the pictures of Molla's wife yesterday going to prison. It was, supposedly, Quader Molla's 'victory sign' after he received his sentence of life imprisonment that infuriated so many people, and partly triggered off Shahbag protests - which led to the government changing the law on appeal of sentence, which led to the death penalty. That picture has become slightly iconic here in Bangladesh.
His wife yesterday, perhaps trying to do a victory sign to emulate her husband put up a backwards victory sign - known to all those who have lived in England as a F--- O--- sign. It is of course possible that this is what she really meant to say to the waiting photographers!
10.55 pm: How some papers got it very wrong
My colleagues at New Age told me this evening that a lot of Bangla language papers were caught out by Molla's sudden reprieve yesterday. Their first editions, which are sent to districts around the country, were completed by about ten at night and had banner headlines, 'Molla Executed'
9.00 pm: It could have been rather different
Somewhat intrigued by the apparent failure of the attorney general to pick up his phone to defence lawyer's calls on Tuesday night (see 8.50pm below). Things could be very different now if he had argued his case at the chamber judge's house - which would have been the same arguments he used in court today.
8.50 pm: More on Defence Stay application, Attorney General's absence etcSome clarification about yesterday's application for a stay of execution. A number of points are now clear having seen the defence application for a stay, the government application seeking a vacation of the stay, and also talking to defence lawyers.
(a) When the defence lawyers went to the chamber judge's house, they had two petitions with them. An application seeking a review of the apellate division's judgement which imposed the death penalty on Molla and an application seeking a stay of proceedings/execution. Both applications were filed with the chamber judge.
(b) according to the defence lawyers, the chamber judge told the defence lawyers to serve the application for a stay with the attorney general. They said that they phoned the attorney general a few times but there was no answer, and also went to his house. They then returned to the chamber judge who heard the matter ex parte (i.e without the government side present).
(c) the stay application was focused tightly on the defence's right to seek a review of the appellate division's judgement (and not on whether the jail code applies or the warrant of arrest was defetive (as I wrote at 11.45pm, Tuesday). The operational paragrpahs of the stay application are:
6. That there being errors apparent on the face of the record in the Judgment and Order dated 17th September 2013 passed by this Hon'ble Court in Criminal Appeal No. 24 of 2013, there are good grounds for filing the Review Petition and there is every possibility of success of the said Review Petition. In such circumstances, the Petitioner applies for stay of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.(d) the government's key arguments in its written application seeking a vacation of the stay application is that the application of the review application is not maintainable as Molla has no right to a review. The key paragraph in its short application is
7. That it is submitted that the life sentence awarded by ICT-2 in respect of Charge No. 6 has been enhanced to a death penalty on appeal by the Government to this Hon'ble Court. As such if the judgment passed by this Hon'ble Court enhancing the life sentence in respect of Charge No. 6 to a death penalty is not stayed by this Hon'ble Court, the same may be executed by the Government, in which case, the instant Review Petition will become infructuous. As such, the Petitioner prays for stay of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.
8. That it is specifically stated that on 8th December 2013, a copy of the judgment of the Hon'ble Appellate Division dated 17th September 2013 was transmitted to the ICT-2. On the same day, i.e., 8th December 2013, the ICT-2 issued a Warrant of Execution on the basis of the aforesaid judgment of the Appellate Division, which was immediately thereafter sent to Dhaka Central Jail. The Petitioner's lawyers have made enquiries with the Jail authorities and have obtained specific information that the Jail authorities are taking steps to execute the death penalty awarded against the Petitioner on the basis of the aforesaid Warrant of Execution. ....
10. .... . As such, there is a real risk that the Petitioner may be executed at any time by the jail authorities. In such circumstances, the Petitioner prays for stay of the judgment of the Appellate Division dated 17th September 2013 pending disposal of the instant Review Petition.
11. That it is submitted that if the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 is stayed by this Hon'ble Court till disposal of the instant Review Petition, no party will be prejudiced. On the other hand, if the said judgment in Criminal Appeal No. 24 of 2013 is not stayed by this Hon'ble Court, the death penalty awarded by this Hon'ble Court in respect of Charge No. 6 may be executed and the Petitioner will suffer irreparable loss and injury. As such, the Petitioner prays for stay operation of the judgment and order dated 17th September 2013 in Criminal Appeal No. 24 of 2013 pending disposal of the instant Review Petition.
(5) That since as per Article 47(A)(a) of the Constitution of Bangladesh the War Criminals has no constitutional right to file any application before the Supreme Court of Bangladesh and thus the order of stay is liable to be set-aside(see below for government and defence arguments in court)
7.20 pm: Defence arguments in court today
[Apologies for the long break but had to go to the UN Asst Gen Sec press conference, about which I will come to later.]
Abdur Razzak, for the defense, argued that the appellate division did have jurisdiction to hear a review application against the death penalty sentence that the court itself imposed. The key sections/article are set out in the text below when discussing the government's argument so I shall not set them out again.
He first of all made the following arguments about Section 21, 24 and 26 of the ICT, the sections raised by the Attorney General. Razzak agreed that the ICT only allowed appeal against sentence and for no other reason. He said that these sections did not help the government's argument, as what is being discussed today is a review of the appellate division decision, not the tribunal decision. In response to a suggestion by Justice Sinha that the tribunal decision runs along with the appeal, Razzak disagreed and stated that the review issue is solely about a decision made by the appellate divsion for death - a decision that was not made by the tribunal. So in summary, he said that these sections of the ICT do not provide any bar to the defence from seeking a review
He then moved onto the Constitution. He said that first of all he wanted to mention that Article 47 of the constitution is contained in part 3 of the constitution which deals with fundamental rights.
He then referred to section 47(3) and said that what this article did was to prevent any part of the ICT Act from being challenged as unconstitutional - and it was therefore not relevant to the matter in hand. In response to the questions of Justice Sinha, he said that the words 'no law nor any provision thereof providing for detention, prosecution or punishment of any person' did not mean that the issues of 'sentence' could not be challenged, only that 'laws .. providing for ... punishment' could not be challenged.
He then referred to 47(A)(1) which he said was a specific provision by which three fundamental rights were stopped from applying to someone like Molla. He went through each in turn and explained how they would have been relevant to the trial of those accused at the International Crimes Tribunal. He said, if the framers of the constitution intended to bar those sentenced of war crimes from using article 105, then they would have stated it explicitly. 'Article 105 has nothing to do with article 47(3) or 47(A)
He then referred to Article 47(A)(2) and said that article 105 was not a 'remedy' it was a 'power' provided by the constitution to the appellate division. He pointed to the fact that article 105 was in part 6 of the constitution - in the judiciary sectionand not in the part of the constitution dealing with fundamental rights.
Following questioning by the bench, he argued that article 105 - which gave the Appellate Division 'the power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it' - applied as the ICT Act did not contain any sections that precluded the article's application.
He then moved onto discuss a Bangladesh case which he said showed that the appellate division has inherent powers of revision which not even the constitution can take away. 'Even if the constitution is suspended, the appellate division would still have these powers,' he said.
It was at this point that the court adjourned the matter.
4.30 pm: Attorney General's arguments in court today
Here are a summary of the arguments made by the Attorney General (AG)who was arguing that the appellate divsion had no jurisdiction to hear a review application made by Molla's defence lawyers.The AG first referred to three sections of the International Crimes (Tribunal) Act 1973 (ICT) .
Section 21 is about sentence:(1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence.Then he referred to section 26 which confirms the precedence of this law if there are inconsistencies with any another law
(2) The Government or the complainant or the informant, as the case may be, may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal or an order of sentence.
(3) An appeal under sub-section (1) or (2) shall be preferred within 30 (thirty) days from the date of conviction and sentence, or acquittal or any sentence, and no appeal shall lie after the expiry of the aforesaid period.
(4) The appeal shall be disposed of within 60 (sixty) days from the date of its filing.
(5) At the time of filing the appeal, the appellant shall submit all documents as may be relied upon by him.The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.He then referred to section 24 which precludes an appeal from any order, judgement or sentence of a Tribunal, other than appeal relating to sentence.
No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever except in the manner provided in section 21.He then moved onto article 47(3) of the constitutionNotwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or any individual, group of individuals or organisation or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provisions of this Constitution.And then article 47A (1) and (2), which were brought in by the first amendment of the constiution in 1973(1) The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.The Attorney General's basic argument was that the ICT Act provides the limits to the appeal that is allowed by a convicted person under the Act, and that 47A(2) specifically bars an accused, falling within Article 47(3) from moving 'the Supreme Court for any of the remedies under this Constitution.'
(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.He then said that article 105, which is the provision under which this review is being sought is a constitutional remedy - and therefore the accused is barred from seeking it.
Please note it will be easier to understand the Attorney General's arguments when read in the context of the defence arguments (see above)
3.15 pm: Fire at Sinha's house
Earlier today it has been reported that some people set fire to Justice Sinha's house in his home village in Moulvibazaar. Sinha was the judge that gave the majority opinion in the appellate division judgment that imposed the death penalty on Molla. He is also on the same bench dealing with the review. Not clear from reports how much damage done to the house. It goes without saying that this is avery worrying development
3.00 pm: Review, not an appeal
Before sumarising the legal arguments made in court, it is important to note a few things about the 'review' by the appellate division (assuming that the defence actually wins maintainability. Some key points are:
1.46 pm: Kerry speaks to Hasina
- there are very limited grounds that can allow a review be successful - there has to be an 'error apparent on the face of the record' which in case law is drawn very narrowly.
- it is not an appeal. It is heard by the same bench of judges that made the order which is in question. So the applicant is asking the same set of judges to accept that they made a serious error! As one cam imagine, successful appellate division reviews are as a result very uncommon. The International Crimes Tribunal gave itself the power of review (though it had much wider discretion than the appellate division to reverse its decision) and although it dealt with dozens and dozesn of application for review, I am not aware of a single one that it overturned.
Here is the constitutional provision dealing with the review and the supreme court rules relating to the procedure. Article 105 provides sets out the power of the appellate division to review its judgment. This Article states:
The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.
Order 26 of the Appellate Division rules sets out the procedure for this.
1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record. (emphasis added)
2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed. The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.
3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.
4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.
5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
6. Except with the special leave of the Court, no application for review shaH be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed. (emphasis added)
8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.
9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed.
US embassy has confirmed to me that 'Secretary Kerry spoke with Sheikh Hasina today about current events in Bangladesh.' No further details have been provided. The embassy also provided me the following points on US's position about the trials - which suggests that Molla was discussed.
'On the ICT case question,
- As we said at the time of the first verdict in Bangladesh's International Crimes Tribunal (ICT), the United States supports bringing to justice those who committed atrocities in the 1971 war.
- We believe that the trials should be fair and transparent, and in accordance with international standards Bangladesh has agreed to uphold through its ratification of international agreements, including the International Covenant on Civil and Political Rights.
-As Ambassador-at-Large Stephen Rapp, Office of Global Criminal Justice, said during a press interview earlier this year: countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees.
- Before any sentence is carried out, it is essential that the process itself stands up to international standards.'1.40 pm: Court hearing adjourned
So Molla lives at least another day .... as the Appellate Division adjourned the arguments at 1.05 today on whether the appellate division had jurisdiction to hear an application seeking a review of the appellate division judgment imposing a death penalty on the Jammat leader.
The Attorney General Mahbubey Alam argued first that section 21, 24 and 16 of the International Crimes Tribunal Act 1973, and article 47 of the constitution barred the possibility of the court hearing a review application. Abdur Razzak, on behalf of the defence, then responded, and the court was adjourned in the middle of his arguments in which he argued that article 47 was no bar. I will post a summary of the legal arguments a little later.
Note that these are arguments on whether to hear the review, not on the merits of the review application.
1.07 pm: Court adjourned until tomorrow morning as arguments on maintainability continue11.20 am: AG meets CJ?
Apparently a number of TV stations reported last night that Attorney General met the Chief Justice in early hours this am, at around 1am. In court this am the Chief Justice rebuked journalists from reporting this, saying it was not true.Clearly if that was true, that would be a rather serious issue.11.15 am: Kerry call
Have heard that call between US Secretary of State and prime minister about Molla execution did definitely take place this morning. Don't know any further details.11.10 am: Revision application filing issue
Just to clarify issue about filing of review of app division judgment. The Defence had, until they sought a stay, not filed a review application but they filed it along with their stay application to the chambers judge, so say Defence lawyers. Apparently only recieved full set of certified copies of judgments yesterday afternoon.11.00 am: Court to hear review maintainability issue
So first court will decide issue of 'maintainability' of review application - the government argues that court has no authority to hear matter. If defence successful, then court will hear merits of review application. If court rules that not maintainable, then according to Defence lawyers they will argue stay on basis of jail code, and also defectiveness of warrant of execution. (See 9.07 pm)10.50 am: Defence lawyers plead vociferously that matter should be adjourned until 2 January (after court holidays) but court having none of it.10.47 am: App Div court adjourns to 11.30 (50 min time) to hear arguments whether a review application before the appellate division is 'maintainable' or not
9.10: am: Kerry calls Hasina?
I can't confirm this but I have been informed that US Secretary of State John Kerry planned to speak to Sheikh Hasina at 9.am Bangladesh time (i.e that would have been ten minutes ago) apparently stressing how 'execution could derail election process'.
9.05 am: UN calls for halt
During the night, the UN issued a press release stating that:
'UN High Commissioner for Human Rights Navi Pillay on Tuesday called for an eleventh-hour stay of execution for Abdul Quader Mollah, a Bangladeshi politician convicted of war crimes in a trial that did not meet stringent international standards for imposition of the death penalty.'It goes on:The Office of the High Commissioner for Human Rights has written to the Prime Minister of Bangladesh, HE Sheikh Hasina, in a last-minute appeal to halt the execution.
In a statement last month, the High Commissioner urged the Government of Bangladesh not to proceed with the death penalty in cases before the International Crimes Tribunal, particularly given concerns about the fairness of the trials.
The United Nations opposes the imposition of the death penalty under any circumstance, even for the most serious international crimes.
Two UN Special Rapporteurs, on the independence of judges and lawyers, and on summary executions, have also called for the execution to be stayed.9.00 am: Defence lawyers say that the legal hearing in the appellate division could start at 9.30 am
TUESDAY
12.10 am: Well unless there are some further remarkable events tonight, that is it from me. Until another eventful day tomorrow, of course. To find out when next posting on this blog, or next live blogging, follow me on twitter: @davidbangladesh or 'follow' the blog Good night from Dhaka.
12.05 am: The Dhaka jail superintendant tells New Age that he has received a copy of the handwritten order and the execution has been stayed
12.00 pm: I am somewhat surprised that the Attorney General did not hotfoot over to the chamber judge and argue against a stay of execution. There may be a reasonable explanation for this but dont know what this is right now.
11.48 pm: I just spoke to Abdur Razzak, the chief defence lawyer. He said:'We are now in central jail. the court office is now closed so we cant have certified copy, so we have taken the clerk's assistant, Mr Islamuddin, who has personally accompanied us with court file, to show the jailer the hand written order which is signed by Justice Hossain'In terms of the legal arguments that they made, Razzaq said that they were the following:'Our aguments were that we have filed review petitions before the appellate division this evening, and these are pending, and that the jail code applies, so Molla cannot be executed before 21 days have passed and have 15 days to decide whether to make mercy petition, and that the warrant of execution was defective'He said that the application was 'ex-parte' - that is to say that there were no lawyer present representing the government - though apparently the defence did try to serve the stay application on the attorney general's office. Present along with Razzak was Khondaker Mahbub
11.25 pm: At 7.05 pm, below, I set out the key weakness in the particular allegation upon which Molla was convicted and then subsequently received the death penalty. I shall be writing a seperate article on what the appellate division said about the issues set out there, but can I encourage those interested to read these articles below which sets out why there is so much legitimate concern about Molla being hanged in relation to this particular charge
- Sole witness in Molla death case gave contradictory statements- Unreliability of witness is reason alone why Molla should not hang- Are the tribunal's justified in restricting defence witness numbers11.08 pm: Another interesting omission in terms of last minute statements was from the UN. It has produced a statement yesterday from two special rapporteurs, but surely you would have expected the UN High Commissioner for Human Rights Navi Pillay to make an urgent request for halting the execution
11.06 pm: Statement from UK (8.44pm), statement from EU (9.50pm), but no statement from the US. Very odd, particularly since Ambassador Rapp made a call this morning to Shafiq Ahmed, the former law minister and now legal advisor to the prime minister, who made a number of apparent commitments to Rapp including that Molla's lawyers would be able to seek a review of the appellate division judgment. (see 7.20pm)
10.46 pm: Can there be any other suprises in store with this International Crimes Tribunal. Believe me there has been everything; abducted defence witnesses, secret skype tapes, alleged procured witnesses, violent and fatal attacks on prosecution witnesses ... and I have missed out lots. Enough already!
10.36 pm: Inspector General of Prisons says that he has yet to receive any order from the court to stay the execution. Well he has 1.5 hours to get it, but knowing how long its takes courts to ready their orders, that is not a long time! But news now breaking everywhere
10.22 pm: Chamber court, Justice Syed Mahmud Hossain orders stay of execution till 10.30am when full bench will hear stay application, Tajul Islam, a defence lawyer, tells New Age
9.56 pm: Am told that we should hear very soon about last minute attempt by Defence lawyers seeking a stay of execution
9.50 pm: The EU Heads of Mission in Dhaka has published a statement on the Quader Molla hanging (see 8.44 for UK government's statement). It calls for halting the execution, and states that the EU 'notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.'
The European Union reiterates its opposition to the death penalty9.40 pm: Quader Molla's family was allowed to stay for 30 minutes inside the jail speaking to Molla. The son said afterwards that his father said that it was a 'political killing' due to the fact that he was involved in 'islamic politics'
The European Union is opposed to the use of capital punishment in all cases and under all circumstances, and has consistently called for its universal abolition. The European Union has followed the judicial proceedings in Bangladesh concerning the crimes committed during the war preceding the independence of Bangladesh in 1971. From the start of the trials, the European Union has repeatedly stressed its concern about the possible application of the death penalty under the International Crimes (Tribunals) Act.
The case of Mr. Abdul Quader Mollah has now reached a stage where an execution of the death sentence given by the Supreme Court on 17th September could be imminent. The European Union notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.
In this context the EU reiterates its position regarding the recent death penalties issued by the International Crimes Tribunal and the Supreme Court as well as the 152 death sentences that were recently handed down in the trial following the BDR mutiny in 2009. The European Union calls on the Bangladeshi authorities to commute these sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment
9.27 pm: So, the Chamber Judge whom the defence lawyers have gone to see is Justice Syed Mahmud Hossain. He was, can you believe it, one of the five judges sitting on the appellate division bench hearing the appeal against Molla, and one of the four who agreed with the death penalty. All he said in the judgement was:
'I have gone through the judgements to be delivered by my learned brothers, Surendra Kumar Sinha, J, my learned bporther Mr Abdul Waham Miah, J [who dissented] and my learned brother ANM Shamsuddin Choudhury, J. I agree with the judgment of my learned brother Sinha J.'Sinha gave the majority judgment9.11 pm: Person in contact with defence lawyers says that apparently 'Molla is not seeking clemency'.
9.07 pm: Likely immediate legal issue that defence lawyers will raise with appellate division judges is legality of the warrant of execution - they already sent a notice to the prosecutors on this issue as part of informing them that they were about to file a review application. I have written about the claim that the warrant of execution is defective here.
By the way, fact that defence lawyers have sent a notice to prosecutors informing them that they were about to file a review shows how dishonest the state minister for law is (see 8.20) when he said that he was surprised that the lawyers had not yet filed a review. The lawyers should in principle have a month to file application according to the appellate division rules
8.50 pm: The defence have sent out two legal teams seeking a stay of execution. One to the chambers judge and one to the chief justice. The judge in chambers has apparently asked for the Attorney General to attend.
8.44 pm The UK government's Senior Foreign Office Minister, Baroness Warsi has issued a statement. It reads:"I am deeply concerned at reports of plans to execute Abdul Qader Mollah in the coming days.The toughest statement so far from the UK government, who in public have been very reluctant to say very much on this issue
"The UK opposes the death penalty in all circumstances as a matter of principle. We consider that its use undermines human dignity and that there is no conclusive evidence of its deterrent value. We further note that Abdul Qader Mollah was sentenced to death following an appeal permitted under retrospectively applied legislation, and that he was not permitted to review his sentence before the Supreme Court. Bangladesh's commitments under the International Covenant on Civil and Political Rights (ICCPR) require that all citizens be treated equally before the law.
"The UK calls again for Bangladesh to implement a moratorium on the death penalty leading to the eventual abolition of the death penalty."
8.35 pm. Inspector General of Prisons says that five hangmen are ready and prepared in Dhaka Central Jail
8.30 pm: Molla's defence lawyers are on the way or about to be on their way to the Chief Justice's house seeking a stay of execution. My view: highly unlikely that something will come of this. (if I said why, could be in contempt of court!)
8.20 pm: More detail on what Quamrul Islam said at the press conference (see 7.55). He said that Molla was offered to seek clemency before two magistrates and he did not do so. Also said that Molla had not sought a review before the chambers judge of the appellate division in the last three days as he thought that he would, though at the same time saying he did not think Molla had the right to make such an application.
Main reason why Molla's lawyers not filed the review application, according to the lawyers, is that they needed copy of the certified copy of the judgment and had not been provided these!
8.00 pm: An alternative explanation (see 6.55 and 7.40) of why Molla is being executed has been given to me by one diplomat. The first signs of a dialogue are starting - not yet close to an agreement - and the government might want to put the BNP into a difficult position. Either the BNP could side with Jamaat and be outraged with the execution and come out of the talks - and then the Al government says, well we told you so, the BNP don't really want dialogue. Or the BNP continues with dialogue and there are strains in relationship with the Jamaat.
7.55 pm: Some plain speaking. There is absolutely no way that the state minister for law can say that all legal options exhausted (see 7:46). The government cannot claim that the defence had no right to a review - that was for the court to decide (see 7.40), and of course Shafique Ahmed told Ambassador Rapp (see 7.20) that Molla had a right to seek review. In addition, only this morning government officers were saying that the jail code did apply and that Molla had seven days to decide whether to seek clemency. The level of disingenuousness here is quite remarkable6.30pm: About an hour ago, Quader Molla's wife was hand delivered a letter asking that the family go to Dhaka Central Jail. This is usually an indication that the execution will take place. This is a reversal of the situation this morning where government officials had said that Molla would be given seven days to decide whether or not to seek presidential pardon. Of course, this morning's position was a reversal of yesterday's position which was that the jail code did not apply at all!
7.46 pm: State minister for law, Quamrul Islam tells media that all legal options for Molla were 'exhausted', and that Molla could have sought mercy but did not take opportunity though he was offered it.
7.42 pm: Family of Quader Molla, now waiting outside jail gate
7.40 pm: Some people are not convinced by explanation at 6.55pm - and argue that political deal is unlikely. It could be because the government wanted to avoid various legal complications that could delay the process. There are three issues: (a) defence lawyer arguments that warrant of execution is defective. (b) application to the appellate division for a review of the appellate court's own order. Whilst this was unlikely ever to succeed, the appellate division bench is going on holiday at the end of the week. (c) the defence may have tried to argue that not only jail code applied, but the amended ones applied which give 15 days for a mercy petition.
7.25 pm: State minister for home affairs has confirmed that execution of Molla will take place at 12.01 am
7.20 pm: At 11.am today I spoke to Shafique Ahmed the former law minister and currently adviser to the prime minister and he confirmed that he had spoken to Stephen J Rapp the US Ambassador-at-Large who heads the office of global justice. Shafique Ahmed told me that he had told Rapp that he was 'no longer in charge and was just an adviser to the prime minister.'
'Rapp expressed his [concerns], and I told him that I would try to convey them to the correct authorities,' he said. 'I told him that all due processes will be maintained, and that Molla could seek clemency from the president under the constitutional provision. This right is available to everyone,' he said. Shafique was apparently referring to article 49 of the constitution which states that, 'The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.' He also said that Molla would have the right to go seek a review of the appellate divisions judgment.It appears that the government may well break these two apparent commitments if Molla is in fact hung tonight.7.15 pm: A colleague spoke to the Inspector General of Police earlier this evening and was told that 'everything was ready for the execution', but did not say when it would take place
7.05 pm: It is important to remember the following: the case on which Molla is being hung involves the murder of six members of one family.There was only one witness to the incident, a daughter of the family who was the sole survivor. She was 13 years at the time. In her testimony in court, she said that on 26 March 1971 her father ran towards the house and said "Qader Molla will kill me" and that Quader Molla pulled her father by the collar, and draged him out of the house, The men then killed her mother, three sisters (one of whom was first raped) and baby brother. After the incident, she said, 'A person called Kamal Khan who served tea to freedom fighters told me, "Quader Molla killed my parents." My Ukil Baba [marriage witness] Akkas Molla also told me the same thing ...'There are significant weakenesses about the evidence given by Momena, now aged about 55 - she had given two previous statements which contradicted her testimony in court .
The first statement was given on September 28, 2007 – five years before she she testified in court - when she was interviewed by a researcher, working at Jallad Khana, the annexe of the Liberation War Museum at Mirpur.
In the statement, there is no mention of Molla. 'Biharis surrounded [Momena's father's house] house and took [her father] away,' the statement reads. It also states that Momena had told the researcher that she was not present during the incident: 'Because the elder daughter of Hazrat Ali, Momena Begum, left for her father-in-law's house two days earlier, she remained alive.'
The statement went on: 'After a few days, the elder daughter of Hazrat Ali, Momena Begum, came to know everything about what happened but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.'
The second inconsistent account given by Momena was to Mohana Begum, the deputy investigating officer assigned to investigate the case against Molla. Whilst in this statement, Momena said that on March 26, 1971, she was in the house when her family was killed, there is, again, no mention of Molla's presence.
Instead, Momena told the investigation officer, as she had previously told the museum researcher, that the men who came 'were Biharis. They entered along with the Pakistani soldiers.' In fact, Momena specifically told the officer that one person was present. 'I know all the Biharis. Aktar Gunda was with them. He was known as a gunda (criminal) in our locality,' she stated.
Molla's name is mentioned twice in the investigation officer's report. Momena is quoted as saying: 'When the war broke out, [Akter Gunda] joined with Quader Molla of Duaripara and started to kill people in Mirpur' and subsequently, 'I heard about Quader Molla and Aktar Gunda and their force from people around.' However, the statement contains no allegation that Molla was present at the time of this offence.
To read more about this see,- Sole witness in Molla death case gave contradictory statements- Unreliability of witness is reason alone why Molla should not hang
6.55: How to explain what is going on? One explanation is that the sudden turn around (earlier this morning there was talk of 7 days period for Molla to consider clemency application (see below) is an indication of progress on a possible deal brokered by the UN Assist Sec Gen currently in Dhaka concerning an election time government. Perhaps the government realises that it may soon be losing executive power and so it needs to execute Molla whilst it has control of the state apparatus?
6.50pm: We will all know more soon as the state minister of law, Quamrul Islam has asked journalists to come to his house for a press conference. Must be about Molla
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