By Umme Wara
June 04, 2014
THE issue of Jamaat's trial as an organization under International Crimes Tribunal (ICT), Bangladesh has become controversial after the comment of the Law, Justice and Parliamentary Affairs' Minister Anis ul Huq on 30 May 2014. He explained why it was not possible to initiate the proceedings against Jamaat right now. His reasoning does not seem convincing enough to many people.
The first concern he raised was that the ICT Act 1973 does not have any provision to try and punish an organization.
Secondly, he said that some of the then leaders of this organisation are already under trial. So if the organization is convicted, the double punishment of those leaders would be in conflict with the Constitution, which needs to be considered before starting any proceeding against Jamaat.
Thirdly, the minister stated that contradictions might arise if trial against Jamaat is started now since there is a case pending with the Appellate Division over the cancellation of its party registration. So, as per the law, trials of two cases on the same subject cannot be pursued at the same time. In a nutshell, the ICT BD Act 1973 needs to be amended to include provisions regarding the trial and punishment of an organization like Jamaat, according to the law minister.
But the issues raised by him can be countered by the legal explanation that it is not necessary to stay the Jamaat case until the amendment of the 1973 Act because the Act itself is sufficient to try and punish an organization within its existing provisions. After the Amendment in 2013, section 3 (1) of the Act clearly states that, “A Tribunal shall have the power to try and punish any individual or group of individuals, or organization, or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the crimes mentioned in sub-section (2)”. Since the word “Organization” is in the section, it is certainly possible to put Jamaat on trial as an organization within the purview of 1973 Act.
The other supplementary issue was whether the Tribunal can punish an organization under this Act or not. We need to look at section 20 (2) of the 1973 Act for the answer. It says, “Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.” This article speaks about “person” which includes both the natural person (a human being) and a legal person (any company or organization), who have been clearly mentioned in section 3(1) of the Act.
Since the Tribunal has jurisdiction to try an “organisation” which has been inserted in section 3(1) through an amendment, it is understood that automatically the Tribunal will have the jurisdiction to punish it too under section 20 (2) of the Act as there is a basic rule of interpretation of statute that states “statute must be read as a whole” meaning one provision has to be read and understood with the essence of the other provisions from the same Act. In addition, it is obvious that an organization cannot be given death penalty so section 20(2) included “or such other punishment” which the Tribunal thinks proportionate to the crime committed by the accused person; natural or legal. So, there is no need to amend the Act as it is crystal clear that it contains provisions regarding the jurisdiction of the Tribunal to try and punish an organization like Jamaat.
In contention of the second issue raised by the minister, if the organization is convicted, it is not necessary to punish the concerned leaders of Jamat, particularly those who are already under trial in the ICT BD. So there should not be any apprehension of application of principle of “double jeopardy” as established under international criminal law. Here the minister mentioned about the Companies Act, 1994; but the Act itself clearly distinguishes between rights and duties of the natural person and legal person as also confirmed in the leading case of Salomon v A Salomon and Co Ltd (1897) AC 22 where it was held that “..once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself..” From this case comes the fundamental concept that a company has a legal personality or identity separate from its members. A company is thus a legal 'person'.
In addition, it is to be remembered that the 1973 Act is an independent statute upon which the Criminal Procedure Code, 1898 and Evidence Act 1872 will not be applied (Section 23 of 1973 Act). So, the Tribunal will continue with its own statute, not with the assistance of other statutes. In this context we can also refer to the 10 truck arms haul case in which Motiur Rahman Nizami was awarded punishment, which certainly does not free him from the crimes committed under 1973 Act. Most importantly, as section 20(2) says, there is a scope to punish an organization as the Tribunal decides proportionately which can be a different punishment other than imprisonment or death penalty of a natural person.
Thirdly, the Minister mentioned about the principle of “multiplicity of proceedings,” that two cases cannot run against Jamaat concurrently. Again it can be argued that this principle applies only when two cases are initiated on the same subject matter. But the case pending with the Apex Court is related to the registration of Jamaat as a political party, because its charter clashes with our Constitution, but the case at the Tribunal would be filed on genocide and war crimes charges. It means the subject matter of two of the cases are completely different, so there can be no apprehension of influencing each other's merit in any way.
It should be mentioned also that the principles of Nuremberg Charter largely influenced the legislative process of the 1973 Act which can be found in the Parliamentary debate of that time. Besides prosecuting individuals, the Nuremberg tribunal declared organizations like leadership corps, Die Sicherheitsdienst des Reichsfuehrer SS (SD), Die Schutzstaffeln Der National socialist is Chen Deutschen Arbeiterpartei (SS) of Nazi party as “Criminal Organziation”. So, we can also bring a charge against Jamaat as a criminal organization under 1973 Act without any delay. We also know that already the Tribunal mentioned Jamaat as a “Criminal Organsiations” in some of its verdicts.
Lastly, it is to be considered whether the law minister can comment on the merit of a case especially when the investigation has been done for almost nine months. It is the Tribunal only who can judge the merit of each case, not anyone from the government, and since the investigation against Jamaat was started during the previous tenure of Awami league, the process should be continued as the principle says that the policies initiated by one government should be continued by subsequent governments to ensure a stable governance system in the society. So to continue the journey of rule of law and justice initiated in 2010 through establishing the ICT BD, the trial of Jamaat as a criminal organization should be initiated without any delay to prove the competence of the Tribunal once again.
Umme Wara is Assistant Professor, Department of Law, Jagannath University