SC against trial under army act

BDR Carnage SC against trial under army act Sends its opinion to president Julfikar Ali Manik and Ashutosh Sarkar The Supreme Court thinks the army act cannot be applied to try those accused of mutiny and massacre at the BDR headquarters on February 25-26. The opinion came in a letter to the Bangabhaban yesterday. Top officials at the Bangabhaban, SC and law ministry did not yet say anything officially about the court's opinion. But sources confirmed the SC has indeed opined against trying the mutineers under the army act. Earlier on August 17, President Zillur Rahman sent a reference to the SC for its views on the mode of trial for the border guards and others complicit in the Pilkhana bloodbath that left 57 top- and mid-ranking army officials killed. The presidential reference sought to know if the Army Act 1952 applies to trial of the BDR personnel. If the answer was 'no', the question would be whether the army act can be applied retroactively through issuing a notification under its section 5. The court replied that the Army Act 1952 does not concern BDR personnel and so the mutineers cannot be tried under it. The law also does not provide for issuing any notification with retrospective effect, said the sources. The full-bench Appellate Division that comprises Chief Justice MM Ruhul Amin, Justice Mohammad Fazlul Karim, Justice Md Tafazzul Islam, Justice Md Joynul Abedin, Justice Md Abdul Matin, Justice Shah Abu Nayeem Mominur Rahman, Justice Md Abdul Aziz, Justice BK Das, Justice ABM Khairul Haque, Justice Md Muzammel Hossain and Justice Surendra Kumar Sinha gave its opinion after hearing for six days the submissions of 10 amici curiae (friends of the court). Contacted last night, Law Minister Shafique Ahmed told The Daily Star, "I have no knowledge of the Supreme Court's opinion yet. I will know about it once it reaches the ministry. “The Supreme Court's would be the legal opinion from the highest court of the land, and the government will respect whatever it may be." Shafiul Alam, secretary at the president's office, told The Daily Star that Bangabhaban received a sealed envelope from the SC soon after noon. He however said he doesn't know anything about the content. "The president has read the Supreme Court's letter, and as per the procedures we have forwarded it to the law ministry by a special messenger," added the Bangabhaban secretary. According to the sources, the SC observed that its opinion made under article 106 of the constitution is no law or judgment, and it has no binding effect on future litigation. Though the president is not bound by it, the advisory opinion deserves due weight and may have great persuasive force, it continued. The court also said its opinion is not "law declared" and is therefore not binding on the High Court division or subordinate courts. However, it is usually expected to be followed. Meanwhile, BDR sources said the Bangladesh Rifles authorities, who had suggested the home ministry arrange for the presidential reference, would not pursue holding the trial under the army act. Some sources in the border force said they believe it would not be wise to hold trial under the army act now that the SC has expressed its opinion against the idea. “If the government still decides to try the mutineers under the army act, it will face numerous writ petitions and run the risk of having the proceedings canceled," said a BDR source. Against this backdrop, the BDR authorities may request the home ministry to have some mutineers tried under the BDR act and others who committed more grievous offences under the civil law, said a BDR official. They would however keep asking the government to ensure a fast-track trial. "We would suggest the government amend the BDR and other laws so the trial can be completed as soon as possible," said the official. The highest punishment under the BDR law is seven years' imprisonment while it is death penalty under the army law. The mode of trial became a much-talked about issue as BDR and the army wanted the offenders to be tried under the army act. The national and army probe committees on the bloody mutiny too suggested the government hold the trial under the army act. But rights organisations at and home and abroad have all along been opposing the idea. Observations of Amici Curiae Upon receiving the presidential reference, the SC appointed 10 eminent lawyers as amicus curiae to give opinion on the issue. Of them, seven opposed the idea of trial under the army act, two favoured, and one refrained from giving any opinion. The amici curiae disapproving of trial under the army act are Kamal Hossain, TH Khan, M Ameer Ul Islam, Mahmudul Islam, AF Hassan Ariff, Ajmalul Hossain and AFM Mesbahuddin. Rafique-Ul Huq and Khandaker Mahbubuddin Ahmed said the trial can be held under the army act. Rokanuddin Mahmud did not give any opinion but suggested the court return the reference to the government. The SC began hearing on the reference on August 25 and completed it on September 3. State Minister's Remarks State Minister for Law Qamrul Islam yesterday said he was unaware of the SC opinion on the reference. He told journalists that everyone should respect the apex court's opinion on trial of the perpetrators of massacre at the BDR headquarters. Replying to a query, he said if the SC is of the opinion that the trial cannot be held under the army act, the government will decide whether it can be held under the existing laws. "But the decision will be made after a meeting with the BDR and army officials and also the chief prosecutor of the case and others concerned," the state minister said. The government will complete the trial within a short time, he added.