Today Tribunal 2 Heard the beginning of Defense Closing Arguments in the case of Chief Prosecutor v. Qader Molla:

Application for Review of Sanction Order
The court first heard an Application from the Defense requesting review its January 3, 2013 order imposing a sanction of BDT 10,000 on the Accused for submitting repetitive applications as a delay tactic.

The Defense submitted that its application for review of the order denying the permission to produce additional witness was submitted upon the decision of the lawyer without the express instruction of the Accused, and that therefore the lawyer should be held responsible instead of the client.

The court adjusted its order stating that the counsel of the accused moving the review application should pay the fine out of his own pocket, although the amount is reduced to BDT 5,000. The court stated the fine was for the failure of the counsel to take specific instructions from the client in regards to the course of action and for failing to act accordingly.

Application for Retrial by a New and Reformed Bench
The Defense then addressed its application for retrial in the Case of Qader Molla. It argued that  it had made similar submissions in other cases based on the perception of bias and improper influence by the former chairman who was part of alleged skype conversations with an outside legal expert based in Brussels (Dr. Ziauddin) who also worked closely with the Prosecution.  The Defense argued that the application should be pressed in the instant case so that it to appears on records. The Defense stated that If the application is to be rejected, the court should announce its reasons in respect of arguments made in this particular application.

The Tribunal responded that its order would not be any different from its orders on other retrial applications unless the Defense introduced new or exceptional arguments to convince the court to the contrary.

Defense Closing Arguments for the case against Qader Molla
The Defense then moved to closing arguments. Senior Defense Counsel Abdur Razzaque made the following legal arguments:

• The International Crimes (Tribunals) Act 1973 was enacted for the purpose of prosecuting the 195 Pakistani Prisoners of War held after independence and is not appropriate for use against citizens of Bangladesh
• The Bangladesh Collaborators (Special Tribunal) Order of 1972 was designed for the prosecution of the rajakars and other collaborators acting as auxiliary forces for the Pakistani Army.
• The executive decision not to prosecute the 195 POWs was given in respect for the Tripartite agreement between Bangladesh, India and Pakistan in 1974, and is similar to a judicial discharge of the cases.
• Where the principal offenders of a crime are not prosecuted, the judiciary cannot prosecute alleged aiders and abettors.
• There has been a 40 year delay in lodging formal charges against the accused without any reasonable satisfactory explanation.
• The true purpose of the trial is malafide due to political and executive interference and a perception of bias.

The ICT Act of 1973 is not the Appropriate Law under which to Prosecute Collaborators
The Defense argued that the International Crimes (Tribunals) Act of 1973 was enacted with the purpose of prosecuting the then 195 Pakistani Army Prisoners Of War. The law was not envisioned as the basis for prosecuting citizens of Bangladesh. Defense counsel cited the Parliamentary debate on the First Amendment to the Constitution on 3 July 1973, followed by the Parliamentary Debate on the International Crimes (Tribunals) Bill of 1973, on 20 May 1973 as proof that the legislative intent of the ICT Act did not encompass the prosecution of citizens or collaborators.

The Defense asserted that the Bangladesh Collaborators (Special Tribunal) Order of 1972 was the law designated for the prosecution of the rajakars and other collaborators. This law applied only to rajakars over whom the commander of the Pakistan armed forces had full control, similar in degree to that exercised over members of the army. Rajakars who acted under the control of the Pakistani Army would thus be considered auxillary forces.The Defense cited the preamble of the act claiming that it showed it was meant to be used to try those who aided or abetted the Pakistan Armed Forces by contributing to crimes against humanity and genocide.

The judges responded that the Schedule of this President’s Order refers to offences under the Bangladeshi Penal Code and makes no reference to genocide and crime against humanity. Accordingly, it could not act as the complete law to try the Rajakars.

The Defense then argued that the government of Bangladesh issued an executive decision not to prosecute the 195 POWs as part of the Tripartite Agreement between Bangladesh, Pakistan and India. The Defense claimed that the decision not to prosecution is similar to a judicial discharge of the case.

The judges weighed in, stating that the decision not to prosecute was an executive decision, not a discharge in the judicial sense.They stated that the executive decision remains open to challenge.

Where Principal Offenders are not Prosecuted, Abettors Should Not Be Either
The Defense continued its argument, stating that because the governement had made the decision not to try the principal offenders (the POWs), by law, the abettors usually cannot be tried by themselves. They cited to the cases 16 DLR 147, 54 DLR 298, PLD 1961 Lah 212.(WCSC is obtaining the names of these cases and will update).

The judges responded that the facts of these cases distinguish them from the instant case.

40 Year Delay in Prosecution Gives Rise to Perception of Bias and Abuse of Process
The Defense then argued that no explanation has been given as to why there has been a 40 year delay in prosecuting these alleged collaborators. Such absence of explanation gives rise to the question of whether these trials are an abuse of process. Such doubts may be fatal to the prosecution. The Defense cited 44 DLR 492 in support of this argument. (WCSC is obtaining the name of this case and will update).

Furthermore, the Defense argued that the conclusion that the proceedings are being persued with malafide intention and for political purposes may be deduced from the surrounding circumstances and executive interference. Razzaq cited to AIR 1967 SC 483. (WCSC is obtaining the name of this case and will update)

Finally, the Defense argued that the trial should not have taken place in Bangladeshi territory, because of the potential perception of bias and the likely prejudice to the judicial process. Razzaq referred to the Lockerbie Air Disaster case, involving an U.S. plane crash on Scottish territory for which the trial took place in Netherlands.

The Defense will continue its submissions tomorrow.

Dynamics Outside of Court
At the beginning of the court session the Defense Counsel notified the Court of the fact that unlike prosecution lawyers, lawyers representing the defense were not allowed to enter the court premises with their cars, which they claimed to be discriminatory. The Judges aligned themselves against such differing treatment giving assurance that the matter will be looked into immediately upon a brief conference addressing security issues.