The legal infirmities of the International Crimes (Tribunal) Act, 1973

by Md. Nazrul Islam Khan
August 20, 2010

http://www.weeklyblitz.net/948/the-legal-infirmities-of-the-international-crimes

The International Crimes (Tribunal) Act, 1973 was enacted by the legislature to try and reprimand the offences of genocide, crimes against humanity, war crimes and other crimes under International law as disclosed in the preamble. To understand any statute in proper sense a close study as well as scrutiny of the preamble and diverse sections is must. A conscious study of the Act reveals that it was enacted to try the members of Armed Forces to whom the Army Act 1952, the Air Force Act, 1953 and the Navy Ordinance, 1961 can be applied and Auxiliary Forces who committed the offences mentioned in section 3(2) of the International Crimes (Tribunal) Act, 1973.Again, due to different provisions of the Act it is absolutely impossible to punish ordinary civilians especially who possess the citizenship of Bangladesh. Unfortunately, some of its provisions contradict with the solemn Constitution of the land as well as with the doctrine of 'Basic Structure of Constitution', which already established in India and recognized in Bangladesh by the Appellate Division of the Supreme Court in historic Eight Amendment case reported in 1989 BLD (SPL) 1. The doctrine primarily established in India by the decision of the Indian Supreme Court in Kesavananda and Indira Gandhi case popularly known as Election case reported in AIR 1973 SC 1461 and AIR 1975 SC 2299 respectively.

Firstly, Section 3 states the jurisdiction of the tribunal, which may be established under section 6(1) by Government through notification in the official Gazette. Sub-section (1) of Section 3 provides, "A tribunal shall have the power to try and punish any person irrespective of his nationality who, being a member of any armed, defence or auxiliary forces commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act...." A plain reading of this sub-section reveals that the tribunal shall have the authority to exercise jurisdiction over any person belonging to armed, defence or auxiliary forces. The nationality of the accused member of armed, defence or auxiliary forces is disregarded also. A person who never belongs to the said forces can neither be tried nor punished by any tribunal established under the International Crimes (Tribunal) Act, 1973. The definition of auxiliary forces given in the Act is vague also. Section 2(a) " 'auxiliary forces' includes forces placed under the control of the Armed Forces for operational, administrative, static or other purposes." Therefore, it is apparent that under the Act the tribunal shall have no jurisdiction over any ordinary citizen irrespective of their nationality.

Secondly, section 3(1) permits to try and punish an offender who has committed any offences mentioned in section 3(2) 'whether before or after the commencement of this Act'. But it is a recognized principle of law that a person must be tried and punished by the law which was in force at the time of commission of the offence. But if the article 47 (3) inserted by Clause (3) of the Constitution (First Amendment) Act, 1973 remains alive then there is nothing to barricade to enforce law retrospectively in violation of the well-recognized principle of criminal justice. It needs to be noted that Article 47(3) permits to try ordinary citizen under any statute having retrospective effect in the form of prisoner of war, war criminals etc. If this article merely permits to try the members of any discipline force but not ordinary citizens then most probably no question will arise, as they in justified manner cannot claim all fundamental rights for the shake of maintaining discipline as mentioned in Article 45 of the Constitution. That's why; question may arise concerning the validity of the said amendment.

It is a fundamental right recognized in article 35 of the Constitution that, "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..." Article 47(3) curtailed the enjoyment of fundamental rights not merely by the members of any armed, defence or auxiliary forces but also who are prisoner of war or accused of genocide, crime against humanity or war crime and any other crime under international law. This article curtailed the basic paramount fundamental right of its citizen on mere allegation of war crimes or crime against humanity. By prescribing such provision the First Amendment infringes the another doctrine of criminal jurisprudence named 'presumption of innocence'.

"It is a long-standing principle of English criminal law that a defendant is "innocent until proven guilty". That is, it is the job of the state (technically the Crown) to prove all the facts of the case against the defendant. The presumption of innonence has two facents. First, that the Burden Of Proof falls on the prosecution. It must prove guilt; it is not for the defendant to prove his innocence. Second, the Standard Of Proof is 'beyond reasonable doubt'". [Downloaded from Internet]

In fact, after proof of guilt by a competent court of law some of the fundamental rights of a convicted person may be taken away but before proof of guilt such attempt and action should not be sustainable in law because it goes against the doctrine of 'presumption of innocence'. But some restrictions may be imposed against the members of any discipline forces in order to ensure as well as maintain discipline. There subsist a clear distinction line between the ordinary citizens and members of any discipline forces.

Again, Clause (3) of the Constitution (First Amendment) Act, 1973 curtailed the fundamental right which forms basic structure of the constitution. Undoubtly, the impugned Amendment shall affects rule of law, fair trial and the doors of justice. It also provides opportunity to politicians to act whimsically in breach of divergent well-recognized principles as well as doctrines, which need to be observed to ensure justice. Perceptibly, rule of law, justice etc. form part of the basic structure of the constitution. In the Kesavananda case Chandrachud, CJ said that the fundamental rights, being a part of the essential of the constitution could not, therefore, be abrogated or emasculated in the exercise of the power conferred by article 368, though a reasonable abridgment of those rights could be affected in the public interest.

It should not be curtailed even by referendum. The object of the incorporation of fundamental rights in the US Constitution was pointed out by Justice Jackson—"One's.... fundamental rights may not be submitted to vote, they depend on the outcome of no election." [West Virginia State Board of Education v Barnette 319 US 638]

The Indian Supreme Court in Golak Nath V State of Punjab reported in AIR 1967 SC 1643 observed that, "The declaration of the fundamental rights of the citizens are inalienable rights of the people... ... The constitution enables an individual to oppose successfully the whole community and the state to claim his right"

In fact, Article 47(3) or Clause (3) of the Constitution (First Amendment) Act, 1973 infringes the basic structure of the constitution by curtailing the paramount fundamental rights of its citizens and therefore, needs to be declared ultra vires and is of no effect. But so far it relates to the members of discipline forces it may remains alive.

Thirdly, section 13 of the impugned Act states no trial before a Tribunal shall be adjourned for any purpose unless the Tribunal is of the opinion that the adjournment is in the interest of justice.

In fact, section 13 makes the High Court Division dependent upon the tribunal. It is up to the discretion of the HCD to decide whether a proceeding should be adjourned or not after applying its sense and conscience to facts as well as circumstances of each case in hand. That's why section 13 is curtailing provision of the discretionary power of the High Court Division that is not tenable in law.

Again, it also infringes the rule of 'natural justice' by empowering the tribunal to decide in de facto manner in its own cause. Therefore, section 13 is violative to the principle of natural justice i.e. no one shall be judge in its own cause and that's why, this section should be declared null and void.

Fourthly, according to section 21 a person convicted by a tribunal shall have the right of appeal, within sixty days of the date of order of conviction and sentence, to the Appellate Division of the Supreme Court.

Before framing such provision the status of the tribunal needs to be clear. Is it superior to the High Court Division? It is now a settled that all courts and tribunals except the Appellate Division are inferior to the HCD. If so, then an appeal against any order or judgement should lies to the High Court Division and not directly to the Appellate Division.

Fifthly, section 6(8) states neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.

This section carries the risk of abuse of power. It gifts a blank cheque to the hands of government. Even if the tribunal shall constitute illegally or there exist bias then the aggrieved party cannot obtain the remedy. This section closed the door of justice for aggrieved person.

Sixthly, Section 8 of the International Crimes (Tribunal) Act, 1973 deals with investigation and the investigation officer is authorized to examine any person who appears to be acquainted with the facts and circumstances of the case. Under Section 8(5) such person shall be bound to answer all questions put to him by an Investigation Officer and shall not be excused from answering any question on the ground that the answer to such question will incriminate or may tend directly or indirectly to incriminate him. Although no such answer which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding but it should not be ignored that section 8(5) is violative to the provision of article 35(4) of the Constitution.

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