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No execution until petition disposal: AG

M Moneruzzaman

Attorney general Mahbubey Alam on Wednesday told the Appellate Division that no step would be taken to execute condemned Jamaat-e-Islami leader Abdul Quader Molla till disposal of his petition seeking review of the highest court’s verdict sentencing him to death.
He said this as the Appellate Division said that since Quader’s petition was pending before the court, it was not necessary to issue further orders to extend its earlier order staying the execution.
A five-member Appellate Division bench headed by chief justice Md Muzammel Hossain adjourned till this morning the hearing on maintainability of the petition.
The same bench, after hearing appeals preferred by Quader and the government against the judgement of the International Crimes Tribunal that sentenced him to imprisonment for life term, pronounced the verdict on September 17 sentencing him to death on charge of crimes against humanity committed during the war of independence in 1971.
The Appellate Division’s chamber judge Syed Mahmud Hossain in a sudden move on Tuesday evening stayed Quader’s execution until 10:30am on Wednesday and posted for Wednesday full bench hearing on the petition filed by Quader.
On Wednesday, Mahbubey Alam argued that the review petition which Quader’s lawyers had filed under Article 105 of the constitution could not be heard by the court as Article 47A (2) of the constitution stated that no person tried under
the International Crimes (Tribunals) Act 1973 would have the right to seek ‘any of the remedies under this constitution.’
The Article 105 gives the appellate division the power ‘to review any judgment pronounced or order made by it.’
He also argued that 1973 act stated that no order, judgment or sentence awarded by the tribunal ‘shall be called in question in any manner or before any court or other authority in any legal proceedings except in the appeal to the Appellate Division.’
Mahbubey said that Quader was sentenced to life term in prison on war crimes charges by a tribunal, and subsequently the Appellate Division sentenced him to death following government appeal under the act, so the convict could not get any remedy in accordance with the constitution and the 1973 act.  
Quader’s lawyer Abdur Razzaq argued that the Article 105 of the constitution and the Appellate Division Rules empowered the Appellate Division to review any judgement pronounced by order made by it.
Razzaq argued that the 1973 act which prohibited an appeal against any tribunal orders other than the final judgement was not relevant here as the defence were not seeking a review of a tribunal decision but of a judgement pronounced by the Appellate Division.
Denying a suggestion made by Justice SK Sinha, a judge of the bench, that the tribunal’s judgment ran alongside the Appellate Division judgment, Razzaq argued that the defence lawyers were only seeking a review of the death sentence which was given not by the tribunal, but by the Appellate Division.
He also argued that prohibition stipulated in Article 47A(2) did not refer to Article 105 which was a ‘power’ of the court, and not a ‘remedy’ to an applicant.
Razzaq also pointed out that if the framers of the constitution meant to remove application of Article 105 from those sentenced under the ICT Act, then it would have stated it explicitly, as Article 47(2) set out three specific fundamental rights which an accused under the ICT Act could not enjoy.
Quader’s chief defence lawyer also argued that the Appellate Division had inherent power of review and it could not be removed by any act of parliament.
The court asked Razzaq whether the Article 105 be could applicable to Quader as its application was subject to ‘provisions of any act of parliament’ which could included the ICT Act also.
Razzaq replied that there was no provision in the ICT Act prohibiting the filing of a review petition.
At the outset of the hearing in a jam-packed courtroom, Razzaq prayed for time until January 2 for preparation of arguments but the court rejected the plea.
The Supreme Court will go into vacation on December 13 and reopen on January 1, 2014.

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