A defence counsel for ATM Azharul Islam, a 1971 ‘Al Badr’ commander, on Tuesday questioned the rule 46 (3) of the International Crimes Tribunals Rules of Procedure whether it can override the penal provision of the International Crimes (Tribunals) Act 1973, a substantive law, imposing fine or reparation upon any war crimes convict.
Advocate A Sobhan Tarafder raised the point of law while continuing his defence case summing-up arguments before the three-member International Crimes Tribunal-1, headed by Justice M Enayetur Rahim.
In support of his view, defence counsel Tarafder argued that the penal provision under section 20 (2) of the ICT Act provides death sentence or such other punishment like different jail terms proportionate to the gravity of the crime.
On the other hand, the section 46 (3) of the ICT Rules of Procedure says, proportionate to the gravity of the crime, in sentencing the accused , the tribunal may also impose fine and or pass reparation order which is deemed to be fit and proper, he said.
As a result, Tarafder said the question may arise whether a substantive law can be amended by a statute that provides rules of the tribunal procedure only.
Interrupting the defence counsel, the tribunal said: “It has now nothing to do. This is not the proper forum. It’s the Supreme Court where it can be resolved following petition.”
The legal dispute surfaced following the appeal made by the prosecution on the closing day of their case summing-up arguments demanding capital punishment to war crimes accused Azharul along with compensation for the Liberation War victim, Mansura Khatun, a Birangana, also a prosecution witness.
The defence counsel accused the investigation officer of initiating the case against his client with a mala fide intention defying the prescribed law keeping his investigation alive though submitted inclusive report to the tribunal.
Terming the investigation report a gross irregularity, the defence counsel claimed that his client was being tried based on half-hearted investigation.
Interrupting Tarafder, the tribunal said that being satisfied, it framed the charge against the accused.
The defence summing-up arguments remained inconclusive.
On November 12, 2013, the tribunal framed charges against ATM Azharul Islam for his involvement in crimes against humanity, including genocide, during the Liberation War in collaboration with the Pakistan occupation army, dismissing his discharge plea.
Also assistant secretary general of Jamaat-e-Islami, Azharul faces six counts of charges of crimes against humanity during the 1971 Liberation War like killing, abduction, confinement, torture, loot, arson, rape and genocide in Rangpur district.
A week after submitting the formal charge by the prosecution, the tribunal on July 25, 2013 took cognisance of the charge against Azharul as it found a strong prima facie case against the accused under subsections 3(2) and 4(1) (2) of the International Crimes (Tribunals) Act 1973.
According to the prosecution case, Azharul had been involved in the killing of more than 1,200 unarmed innocent civilians in Rangpur during the Liberation War in collaboration with the Pakistan occupation army.
It mentioned that Azharul Islam had played a key role in the killing of intellectuals, cultural personalities, physicians and lawyers in different areas of Rangpur during the 1971 war.
On August 22, 2012, police arrested Azharul from his Moghbazar house in the capital in connection with the war crimes case, after the tribunal issued a warrant for his arrest upon a prosecution plea.
Azharul Trial Defence raises legal dispute over penal provision