BDR Trial Reference Decision Sent to The President

The Supreme Court of Bangladesh has sent its decision to the President on the reference sent to it under Article 106 of the Constitution. The Reference sought the apex court's opinion whether BDR personnel could be tried under the Army Act, 1952. 10 amici curie were appointed. There were divergence of opinion and the court decided that it was not possible for the trial to take place under the Army Act. In here, I had argued that all options were open to the Government. But with this decision, it is almost now certain that the Army Act route is unavailable.

I must agree with Mr. Rokanuddin Mahmud's point on the maintainability of this reference. In my opinion, the questions stated in the reference and in fact the whole subject matter of it is not appropriate for reference to the Supreme Court under Article 106 of the Constitution. This is a highly contentious issue and the questions sent ought to be answered in appeal not in reference. Furthermore, it is inevitable that these questions would come up in appeal and then there would be a conflict of decisions.



Even if the Supreme Court had taken the decision that the Army Act may apply, it wouldn't have been prudent to try such serious offences in Court Martial. Courts Martial are not proper forums for trying such grave offence like murder. Serious offences are always tried in Civil Courts since the accused person's life and liberty are at stake. On the other hand it is also true that the carnage at the BDR on 22nd February is an extra ordinary event and there should be a speedy trial. After the decision of the Supreme Court, the Government now may set up special tribunals under the general criminal law which will exclusively try the BDR accused. In this case the trial would be transparent as well as expeditious.
(Photo: courtesy www.thedailystar.net)

Supreme Court Company Rules Published

Supreme Court Company Rules have been published in the official gazette.

Three Bills hava been passed

As far as I know three Ordinances have been ratified/passed. The Right to Information Act, Dhaka Power Distribution Company Act and Bangladesh Biman Act (the titles may be wrong because they haven't been published yet).

Bangladesh Rifles Mutiny Trial Options

A very tragic event took place on the 24th and 25th of February, 2009 at the Bangladesh Rifles (BDR) headquarters in Dhaka resulting in the loss of lives of scores of army officers, their family members, some Bangladesh Rifles personnel and other innocent people. Such an unfortunate event has shocked the whole country and understandably every one has been pressing for justice and a speedy trial of the culprits. Every criminal should be punished according to law and the culprits of the BDR conspiracy should not be any different. The aim of any criminal justice system is to deliver justice- effectively,transparently, within the due process of law and without delay. Trial of the BDR mutineers and their accomplices should not be perceived as an instrument of revenge and at the end it should be seen that justice was done.

The occurrence at BDR headquarters is an unusual one and now the question has come up as to how to deal with it. Keeping in mind of the severity and brutality of the acts committed, a speedy trial and exemplary punishment is in order. There are more than one way of doing it and all of the routes have their pros and cons, detail discussion of which would require a more elaborate essay. I hope the following discussion would help to alleviate some of the confusions caused regarding the trial of the BDR mutineers.

Retrospective effect of Criminal Law:
It is a fundamental tenant of the criminal justice system that no one may be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. In other way, a person should not be subjected to the process of criminal law by retrospective operation. This universal principle is stated in Article 35(1) of our Constitution as a fundamental right.

“Article 35. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.”

Generally, all laws are prospective, that is they affect any event after their promulgation. But some times they may be made retrospective. This runs the risk of unjustly prejudicing the offender specially in criminal law. That is why we have the above universal principle incorporated in our Constitution. However, the constitution has an exception to this above provision. Article 45 states:

“Article 45. Nothing in this Part shall apply to any provision of a disciplinary law relating to members of a disciplined force, being a provision limited to the purpose of ensuring the proper discharge of their duties or the maintenance of discipline in that force.”

The protection against retrospective operation of criminal law as such will not be applicable for members of the three armed forces and police (Article 152 of the Constitution interprets what is a disciplined force) and BDR ( Section 4(3) of The Bangladesh Rifles Order, 1972) and their respective laws. In international law, such exception is commonly granted against crimes against humanity and war crimes (Such exemption for war crimes is provided in our Constitution as well, Article 47(3) ). The rationale behind such exception is that the disciplinary forces are special bodies whose works relate to matters of national security and a higher standard of behaviour and discipline is expected from them. Amendment of the Constitution is not needed.

Military and Civil offences:
Military or services offences in general are distinct offences applicable to military forces. Civil offences are general offences applicable to all persons e.g. penal code. Example of military offences are mutiny , insubordination , desertion etc. Chapter V of the Army Act, 1952 has a list of detailed offences specially punishable under that Act by court martial. The BDR order also lists a number of special offences including mutiny that are triable under the BDR order by a special court. However, unlike the Army Act, the BDR order has no provision for trial of civil offences under special court.

Trial under the Bangladesh Rifles Order, 1972:
Bangladesh Rifles personnel operate under the Bangladesh Rifles Order, 1972. As such they are liable for special offences mentioned therein. The order is inadequate for proper operation and maintenance of a force like the BDR. For example, the maximum punishment for such a high offence as mutiny is only seven years which is quite deficient. Although the mutineers should have been tried by this order, because of its deficiencies , this order as it stands at the present would be inadequate to try the culprits for services offences. As per Order 16A, the Director-General of DG may be invested with the power of a First class magistrate by the Government to investigate and try Penal Code offences committed by one subordinate officer against another subordinate officer. But scope of this Order is limited too and offences against superior officers are excluded.

The BDR order does not envisage trial of civil offences under the special court. Such trial is left with the general criminal courts. Unless retrospective law is enacted to remedy the inadequacies of the BDR order, trial of the mutineers under this order will mean convicts can only be sentenced to maximum seven years imprisonment for service offences. For civil offences like murder, general criminal trial will have to take place separately.

Trial under the Army Act , 1952:
The Army Act, 1952 is a more comprehensive piece of legislation than the BDR order. Section 2 lays out the classes of persons subjected to this Act. BDR jawans are not included. The government by notification can have this Act apply to other forces under the government (Section 5). This notification would be required to have retrospective effect too. In such a case, full spectrum of service offences triable under court-martial would be applicable to try the BDR mutineers. Civil offences like murder and rape can also be tried under the Army Act (Section 59). In that case it would be possible to try both military and civil offences before the same forum. For civilians who are charged with seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, they can be tried under court-martial. For other offences, they would have to be tried under the general law.

Trial under general criminal court:
Needless to say, civil offences can be tried before the general criminal court. In that case Article 45 exemption is not available (not required too). Main consideration would be the delay in trial. Superior court's intervention also may be anticipated. The case can be transferred to a Speedy Trial Tribunal, in which case the trial would be much faster. If a competent prosecution team guides the trial process from its inception, including the investigation stage, then it is less likely that the Superior court would need to interfere. The trial would be in public and this means it will be more transparent. On the other hand sensitive information would come into the public domain. Furthermore, after conviction, the case is likely to go to the High Court Division and then to the Appellate Division of the Supreme Court and considerable time consumption there cannot be ruled out.

The nation demands justice for the victims of the BDR tragedy. The perpetrators must be punished. The trial process should be just, transparent, within the due process of law and expeditious. There are more than one way of doing it and it will be up to the government to pick one that will be fair to all concerned.
(Photo Courtesy www.nowpublic.com)

Ordinances Placed Before Parliament

The new government has placed 122 ordinances before the parliament. Unless passed within 30 days of the first parliamentary session, those ordinances promulgated by the President during the caretaker government's two year tenure would become automatically ineffective. Some of the ordinances would be placed as bills and would be passed in the usual way. Some of the ordinances would be ratified as they stand now. The third group of ordinances will be left to become ineffective after 30 days.

The government is now considering ways to validate the immediate past care taker government itself since they have been in office for around two years whereas they were suppose to stay for three months. Although a High Court Division bench has validated holding of the general election after a long delay, it is not enough however to regularize the Caretaker government itself. The media reports that Parliament is now considering amending the Constitution to validate the Caretaker government. In my opninoin, this should have been done by the Appellate Division of the Supreme Court of Bangladesh under the court's advisory jurisdiction under Article 106 as soon as the three month tenure of the government was over. The problem faced fits perfectly to the criteria stated in Article 106. It is still possible and that would have been the best way of doing it.

Bangladesh had ample experience with extra-judicial governments during its 38 years existence and therefore there will be no shortage of past precedence to look into to solve this problem. However, the uniquness of the current situation makes it a bit difficult to reach the best solution specially because the implications will have far reaching political and legal consequences.

Although the government wants to validate the care taker government's extended existence and its actions, it does not want to encourage future repeatation of a similar kind.