Crimes against Humanity | Reflection of Judicial Mind on Different Issues | A BROKEN DREAM | Status of Rule of Law, Human Rights and Democracy

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Crimes against humanity are certain acts that are deliberately committed as part of a widespread systematic attack or individual attack directed against civilians or an identifiable part of the civilian population. The first prosecutions for crimes against humanity had taken place at the Nuremberg Trials. These crimes have since been prosecuted by other international courts. Unlike war crimes, crimes against humanity can be committed during both peace and war. They are not isolated or sporadic events but are part either of a governmental policy or a wide practice of atrocities tolerated or condoned by a government or de facto authority. Murder, massacre, extermination, dehumanization, genocide, ethnic cleansing, deportation, unethical human extermination, extrajudicial punishment including summary execution, state terrorism or state sponsored terrorism, death squad, kidnapping and forced disappearance, unjust imprisonment, enslavement, torture, rape, political repression, racial discrimination, religious persecution, and other human rights abuses may reach the threshold of crimes against humanity if they are part of a widespread or systematic practice. 1A

In 1993 the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) and expanded the list of criminal acts used in Nuremberg to include imprisonment, torture and rape. Subsequently in 1994 the Security Council established the International Criminal Tribunal for Rwanda (ICTR), pursuant to the genocide that had taken place from April to July 1994. In this Charter, the requirement was added that the inhuman acts must be part of a systematic or widespread attack against any civilian population on national, political, racial or religious grounds. The Permanent International Criminal Court came into force in 2002 and in its founding treaty, the Rome Statute, expanded the horizon of offences. The offences include1B (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectively on the grounds of political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Naturally, the first appeal of Abdul Quader Mollah was heard because it was the first case tried by the Tribunal. I am the author of the judgment in presence of the Chief Justice because he endorsed me to express the opinion of the court. In course of hearing of the appeal, a crucial point on question of law was raised on behalf of the convict that the tribunal erred in law in convicting Quader Mollah without following Customary International Law (CIL) which is applicable in the case, inasmuch as, an offence of crime against humanity attracts CIL on two broad reasons, (1) article 47(3) of the Constitution expressly recognizes that genocides, crimes against humanity and war crimes fall under international law; (2) the short title, the long title and the Act1 expressly provides the detention, prosecution and punishment under international law. I disposed of the point holding that though the tribunal has invested with the power to try any person for violation of “any other crime under international law” this does not mean that the tribunal is bound to follow CIL. It is not correct to infer the constituent elements of crimes against humanity as recognized under the international law must be present for convicting a person. When a person irrespective of nationality will be charged with “any other crime under international law,” he may claim his right to follow CIL, though the Act is based on the foundation of International Legal Instruments or in the alternative, the Act was structured in conformity with international standards, in consultation with international experts and the legislature has excluded those offences to be followed under International Law.

The offenders of former Yugoslavia and Cambodia were tried under International Law in accordance with the Rome Statute with the help of international experts. But we have our own statute and we have inherited a legacy of administration of justice for more than three hundred years. There was a provision that any State party which has not accepted the amendment to the Rome Statue, can withdraw from this Statue with immediate effect.2 Further a look into the provisions of our Act will reveal that it is a domestic law. The offences mentioned in the Rome Statue and those mentioned in our Act are distinct. The offences mentioned in section 3 of our Act were not in existence when the Rome Statute was corrected on November 10, 1998, January 12, 2001 and January 16, 2002; these came into force on July 01, 2002. These are quite distinct offenses and these offences will not be applicable to all domestic tribunals as would be evident from the preamble “emphasizing that international criminal court established under this Statute that shall be complementary to national criminal jurisdiction.”

Since the tribunal was constituted under the Act of 1973, it has no jurisdiction over a national, ethnic or religious group or any civilian population or persons other than any individual or group of individuals or organizations or any member of any armed, defense or auxiliary forces unless he commits crimes mentioned in section 3(2) in the territory of Bangladesh. More so, under the Rome Statue the accused has a right to challenge the jurisdiction of the court.3 and while applying the law, the court shall consider the State, the elements of crimes and its rules of procedure and evidence. The national laws of States which are not inconsistent with the Rome Statue shall be applicable to the ICT. Therefore, the Rome Statue has no primacy over the national law. Our apex court held4 that local laws both constitutional and statutory are not always in consonance with norms contained in international human rights instruments. If domestic laws are not clear enough or there is nothing therein, the national courts should draw upon the principles incorporated in the international instruments. But in cases where the domestic laws are clear and inconsistent with the international obligation, the national courts will be obliged to respect national laws. In another case5 our apex court had held that our courts will not enforce the covenants and conventions even if ratified by the State unless these are incorporated in municipal laws. International conventions could be recognized upon ratifications but could be applied only when its provisions are incorporated in our municipal laws and thus for enforcing any international covenants under any convention to which our country is a signatory. The provisions of the convention must be incorporated in our domestic law. 6

English and Indian superior courts also took similar views.7 It is a trite to observe that there is no such thing as a standard of international law extraneous to a domestic law of a kingdom to which appeal may be made.8 Though international convention could be recognized upon ratification, it could be applied in our country when its provisions are incorporating our municipal laws and thus for enforcing any international covenants under any convention to which our country is a signatory, the provisions of the convention have to be incorporated in our domestic law. The US Supreme Court also observed 9 that law is a universal obligation and no statue of one or two nations can create obligations for the world. Like all the laws of nature it rests upon the common consent of civilized communities. It is in force, not because it was prescribed by any superior power but because it is accepted as a rule of conduct. Every nation must be the final judge for itself, not only of the nature and extend of the duty but of the occasions on which its exercise may be justly demanded.10 It was also observed that international organizations are established by States through international agreements and their powers are limited to those conferred on them in their constituent
document. The Security Council has the authority to make decisions that are binding on all member States when it is performing its primary responsibility of maintaining international peace and security. Individuals are generally not regarded as legal persons under international law. Their link to the State is through the concept of nationality which may or may not require citizenship.

Though some international practices and obligations are treated as peremptory norms (Jus Cogens), a breach of such peremptory norms does not entail any penal sanction upon the State. I concluded my opinion, besides observing other points, that the CIL developing international crimes does not impose penal sanction upon an individual unless the domestic law assimilates the said concepts of international crimes into the body of domestic law. After disposal of the appeal on merit two review petitions were filed by convict Abdul Quader Mollah.11 On behalf of the State a preliminary objection was raised about the maintainability of the review petitions claiming in view of Article 47A (2)12 review petitions are not maintainable from the judgment of the appeal in the absence of any provision for review in the Act. I held that the provisions in the Constitution are a non-obstante clause. But a combined reading of the provisions of the Act suggests the intention of the legislature that the trial of offences specified in the Act should be concluded expeditiously. However, an appeal is essentially the continuation of the original proceedings. When a right of appeal is conferred by a statue, it becomes a vested right and, therefore, where the right of appeal exists it is a matter of substance, not of procedure and, therefore, it cannot be said that the appellate court cannot invoke its inherent power, if it finds it necessary to meet the ends of justice or to prevent the abuse of the process of the court.

There is an inherent right to a litigant to a judicial proceeding and it requires no authority of law to see the correctness of the judgments. An appeal being the continuation of the proceeding, in effect, the entire proceedings are open before the appellate authority and it has the power to review the evidence subject to statutory limitations prescribed. A right of appeal carries with it a right of rehearing in some way. The primary functions of the court are to do justice in respect to causes brought before it, then on principle it is difficult to accede to the proposition that in the absence of specific provision the court will shut its eyes if a wrong or an error is detected in its judgment. Courts are meant to do justice and must deem to possess as a necessary corollary inherent in their constitution all the powers to achieve the end and undo the wrong. It does not confer any additional jurisdiction on the court; it only recognizes the powers which it already possessed.

If the law contains no specific provisions to meet the necessity of the case, the inherent power of a court merely saves by expressly preserving the court which is both a court of equity and law, to act according to justice, equity and good conscience and make such order as may be necessary for ends of justice or to prevent the abuse of the process of the court. It is an enabling provision by which an inherent power is vested in a court so that it does not find itself helpless in administering justice. The court can use its inherent powers to fill up the lacuna left by the legislature while enacting law or where the legislature is unable to foresee any circumstance which may arise in a case. There is a power to make such order as may be necessary for the ends of justice and prevent the abuse of the process of the court. The inherent powers of the court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the law. They are not intended to enable the court to create rights for the parties, but they are meant to enable the court to pass such orders for ends of justice as may be necessary.

The court is conscious that it cannot rewrite, recast or reframe the legislation for the very sound reason that it has no power to legislate. It cannot add words to a statue or read words into it which are not there. A court shall decide what the law is and what it should be. A court of course adopts a construction which will carry out the presumed intention of the legislature but cannot legislate itself. The court should not give beneficial construction where by giving such construction it would virtually legislate a position either by addition, alteration or substitution of words where the words used in a statue are capable of only one meaning from which the court may not depart; and when the provision is unambiguous and does not give rise to any doubt as to its meaning. Where two alternative constructions are possible, the court must choose the one which would be in accord with other parts of the statute and ensure smooth, harmonious working and eschew the other which leads to absurdity, confusion or fiction, contradiction and conflicts between its various provisions, or undermines or tends to defeat or destroy the basic scheme and purpose of the enactment.13

There is a presumption that the authors of a statute intend results that are both rationale and coherent and that human behavior is guided by reasons and purpose and is seldom bizarre. It is, therefore, necessary to apply the principle of logic, both deductive and inductive, particularly in excluding from consideration facts and circumstances which are not relevant for determination of issues raised14 where, by use of clear and unequivocal language, capable of only one meaning, anything enacted by the legislature may be enforced however harsh or absurd or contrary to common sense the result may be. However, the literal construction would defeat the obvious intention of the legislature and would produce a wholly unreasonable result, the court must do violence to the words to achieve that obvious intention and produce a rational result.15 it is because, it may be presumed that the legislature does not intend to produce any absurd result. If two interpretations of a provision are possible the court will lean in favor of that construction which avoids absurdity and ensures smooth working of the system, which the statues seek to regulate.

If the court is vested with full power for seeking complete justice, there is no reason why the exercise of that power would not be applicable in respect of a matter coming up before it in the form of a decision by a lower tribunal. There is no reason why that power in its full scope should not also be applicable for reviewing a judgment delivered by the highest court of the country if there is necessity within the meaning of the expression “complete justice” in exercise of that power. Accordingly, I held that the court has ample power to give such directions as are necessary for the ends of justice.

This power has been recognized and exercised by issuing necessary directions to fill in the vacuum till such time the legislature steps in to cover the gap. This power is not restricted by statutory enactments, but it should be used sparingly. Accordingly, I held that the review petition was maintainable.

(A-1) Killing of Natun Chandra Singha

Salauddin Qader Chowdhury had faced trial before the tribunal on 18 counts of serious offences, like killing, abduction, torture, compelling Hindus to leave the country, concealment of dead bodies, etc. Evidence disclosed that
he was directly involved in those crimes and he had set up a torture center at his house. The tribunal found him guilty of charges 2, 3, 4, 5, 6, 7, 8, 17 and 18 and sentenced him 20 years on two counts, death on three counts, and 5
years on two counts. He filed an appeal in the highest court and the court after hearing the appeal16 by judgment dated July 29, 2015 allowed the appeal in part acquitting him in respect of count number 7 and maintained the conviction and sentence in respect of charge nos. 2, 3, 5, 6, 8, 17 and 18. He was sentenced to death in respect of count numbers 3, 5, 6 and 8. Of the said charges charge number 3 is a very sensitive one. I will discuss this charge only. The incident took place on April 13, 1971 at around 9:30 to 10:00 AM. Natun Chandra Singha, the founder of Kundeshwari Owshadhaloy, was brutally killed. In support of the charge the prosecution examined two eye witnesses, Gouranga Singha and Gopal Chandra Das. Gouranga stated that he along with Gopal Chandra was on the first floor of Natun Chandra Singha’s Kundeshwari Owsadhalay and saw from there that Salahduddin Quader Chowdhury with some Bengali and military personnel came to the spot. They pulled Natun Chandra Singha out of the Mandir (temple). The military personnel and Salahuddin Quader Chowdhury shot at him. A case was lodged with the Rauzan Police Station by Satya Ranjan in 1972. Profulla Chandra, another witness corroborated witness Gouranga Singha. Gopal Chandra stated that he was the principal of Kundeswari Women’s College and at the time of occurrence, he was on the first floor of the Kundeshwari complex. He said that he and Brazahari saw the incident from the window. Salahuddin Quader Chowdhury and the army personnel talked for a bit with Natun Babu and then left.

Sometimes thereafter, they came back. They saw the Pakiastani force and Salahuddin Quader Chowdhury enter the temple, drag out Natun Chandara from the temple and brought him out onto the courtyard fired at him indiscriminately and then they left. In support of the charges the prosecution had examined forty-one witnesses and provided a series of documentary evidence showing the participation of the offender. The defense took a plea of alibi and examined some witnesses. Its main case was that Salahuddin Quader Chowdhury was not present in Chittagong, he was initially in Karachi, then moved to Punjab for studying at Punjab University and in the later part of September he left for the UK for higher studies. In support of his plea, it examined some witnesses and some documents.

However, it failed to produce reliable documents in support of his study in Punjab or in London. The tribunal and the apex court did not find his plea credible and held that the accused had utterly failed to prove that he had left for then West Pakistan in March 1971. The court also disbelieved the documentary evidence filed in support of the alibi plea and held that the oral and documentary evidence produced by the prosecution was reliable. The apex court maintained his conviction in respect of eight counts including the brutal killing of Natun Chandra Singha. Against the said judgment Salahuddin Quader Chowdhury filed a review petition.17 in the review petition the defense had produced a duplicate certificate dated May 22, 2012 issued by the University of Punjab certifying that Salahuddin Quader Chowdhury obtained Bachelor of Arts degree from the department of political science in the examination held in August 1971.

Another duplicate certificate attested by the Vice Chancellor and Registrar of Punjab University and authenticated by an officer of the Foreign Ministry of Pakistan and some other letters and documents were also filed. Initially he filed a testimonial issued by a professor of the department of Political Science, University of Punjab, issued on January 24, 2013. The Court believed that the testimonial was a forged one. In the review matter he produced a duplicate certificate of the university. In support of the alibi plea it was submitted in circumambulation that this duplicate certificate proved that Salahuddin Chowdhury was in Pakistan in September 1971.

I discarded the plea observing why he could not produce the certificate before the tribunal or at the appellate stage, although he had procured many affidavits and other papers in 2013 from Pakistan. Even then it was submitted again and again on the question. A duplicate certificate was apparently a forged paper which was detected on my first glance. But I did not make any query and kept silent with a view to affording the lawyer an opportunity to improve it if possible. Other members of the Bench, Nazmun Ara Sultana and Hasan Foez Siddique were making one or two queries of the counsel while Syed Mahmud Hossain kept silent. I was of the view that if I could draw the attention to the forgery, the counsel would be put in an embarrassing position at the very initial stage. Since a death sentence had been passed, the council should be afforded time.

The council did not go into the merit of the matter, and there was little scope to make submission on facts in review matters. I realized that the counsel would be tired at one point of time and when he would finish leaving no other point I would point out the forgery. After arguing about one and half hours, I noticed that the counsel was making only one submission, that Salahuddin Quader Chowdhury’s absence from the scene of occurrence is proved from the duplicate certificate. On his behalf no other submission was made. I made it clear to the counsel that if he could satisfy me about Salahuddin Quader Chowdhury’s claim of studying at Punjab University in 1971 I would be in favor of allowing a review of the matter and persuade my other colleagues to follow me. The counsel felt satisfied that the Chief Justice was confining the hearing only on one point and hence it would be very easy for him convince the court.

I asked him to place the duplicate certificate again and queried whether, on the face of it, he could detect any forgery in procuring it. The counsel seemed confused on point that I was doubting the genuineness of the duplicate certificate. When he failed to follow my query, I pointed out that this certificate was issued in 2012 and the defense did not produce it in the tribunal even though it was in his possession. The counsel then replied that an application for the copy was filed earlier, but he received it in November 2015.If it was issued on May 22, 2012, there was no reason not to produce it in the tribunal; but he could not meet the point. The second point I asked him related to which academic session was the accused admitted in Punjab University and obtained degree in 1971. In the certificate, his academic session was shown as 1971. I pointed out that there was no scope for receiving a Bachelor of Honors degree in one year. When he noticed the defect, the counsel replied that the accused studied in Dhaka University and then he transferred his credit to Punjab University in 1971. It is not at all the defense plea that the accused was initially admitted to Dhaka University and then completed his degree in Punjab University.

During the Pakistan period honors degree course was of three years course and recently it had been turned into a four-year course. I asked the counsel whether he could produce any scrap of paper that the accused had studied in honors course in 1969 or 1970 in Dhaka University. I also wanted to know whether there was any provision for transferring credits from one university to another university in 1971. The counsel felt embarrassed to reply to my query. When I pointed out that the certificate was a spurious document, the counsel seemed very shaky. Then I drew his attention to whether he had any other point to argue on merit. He frankly conceded that he had no case on merit save and accept the plea of alibi. Then I repeated that the duplicate certificate was a forged one and given that fact should the court take judicial notice of it. The counsel realized the sentiment of the court as to on which point we were underlining and he sat down without saying anything.

References:

1A. Margaret M. DeGuzman, “Crimes Against Humanity” RESEARCH HANDBOOK ON INTERNATIONAL CRIMINAL LAW, Bartram S. Brown, ed., Edgar Elgar Publishing, 2011
1B. Rome Statute of International Criminal Court, Article

1. International Tribunal Act, 1973
2. Article 124 XI of the Rome Statue
3. Article 19 of the Rome Statue
4. Hussein Muhammad Ershad v. Bangladesh, 21 BLD (AD) 69
5. Bangladesh v. Sheikh Hasina, 60 DLR (AD) 90
6. Ms. Supermax International v. Samah Rajor Blade Industries, 2ADC 593
7. J.H Rayner Ltd. V. Department of trade and Industry, (1990) 2 AC 418; Apparel Export Promotion Council v. V.A.K Chopra, AIR 1999 SC 625
8. Mortensen v. Peters (1906) 8F (J) 93
9. The Scotia, 81 US (14WAII) 170 (1872)
10. Joseph Story, Commentaries on the Conflict of Laws, p 24-38
11. Criminal Review Petition Nos. 17-18 of 2013
12. Article 47A (2) of the constitution
13. Andhra Pradesh v. LVA Dikshitlu, AIR 1979 SC 193
14. ‘The Role of Logic’ in Reed Dickenson’s “The Interpretation and Application of Statues.”
15. CIT v. National Jaj Traders, AIR 1980 SC 485
16. Salahuddin Quader Chowdhury v. Chief Prosecutor, Criminal Review Appeal No. 122 of 2013
17. Criminal Review Petition 63 of 2015

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