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The Supreme Court on Thursday concluded hearing the presidential reference on the BDR mutiny trial after six days of deliberations by legal experts, with most of them recommending against thecourt martial of the mutineers.
Ten amici curiae or advisers to the court were appointed to give opinions on the president's reference.
Six of them have recommended against the possibility of trying the Feb 25-26 mutineers under the Army Act, 1952, while two have spoken in favour of military trial.
Two others opined that the president's reference be sent back altogether.
The apex court is expected to judge the reference soon.
Amici curiae A F Hassan Ariff and A F M Mesbahuddin observed that it was not possible to try the mutineers under the Army Act.
Mesbahuddin, the last of the advisers who concluded his statement at 11:30am, said the trial can be held under the existing law or speedy trial law.
The hearing by the 11-strong full Appellate Division bench, headed by chief justice M M Ruhul Amin, ended at 11:40am
The court reconvened at around 10:15am with Hassan Ariff resuming his submission that he had begun on Wednesday.
Attorney general Mahbubey Alam then delivered a concluding speech, while the court thanked the amici curiae for giving their opinions.
Ariff told reporters after the hearing: "It is not possible to directly try the BDR members under Army Act. The Army Act does not have the authority to effect trial of a previous action by issuing gazette."
"The court can send back the reference to the president by not giving any reply," he said.
Mesbahuddin said: "It is not possible to hold the tral under the Army Act. The pre facto effectiveness is not possible under this act."
"But it can be tried under existing law or speedy trial tribunal," he said.
Attorney general Mahbubey Alam told reporters: "I have said that though it is not possible to hold direct trial under Army Act, the trial can be held by issuing gazette."
Asked when the Appellate Division would give its opinion, Alam said: "The court will send its opinion to the president. But it is the court's own affair when it will send it. There is no provision to give opinion openly."
Three more senior lawyers, Dr Kamal Hossain, Mahmudul Islam and Ajmalul Hossain on the fifth day of proceedings on Wednesday recommended against the possibility of trying the BDR mutineers under the Army Act 1952.
One of them spoke of withholding a judgment altogether on the president's reference on the trial of the mutiny.
Ten amici curiae were appointed by the court to give opinions on the president's reference. Only two so far have spoken in favour of trial by Army Act.
Six others have either been against army trial or against answering the reference as it may interfere with ongoing investigations.
Kamal Hossain said that the defendants would have to be classified based on their offences through investigation. "We want punishment for the criminals. But we do not want innocent BDR personnel punished," he said.
Written submissions on the presidential reference were then presented on behalf of Mahmudul Islam and Ajmalul Hossain, who are currently abroad.
Mahmudul's statement said trial of BDR members is not possible under the Army Act, and last February's incident could not be tried by notification with retrospective effect.
Ajmalul Hossain's statement also said the provisions of the Army Act were not applicable for BDR members, nor could a notification have retrospective effect.
Kamal Hossain had said the same the day before, as had Barrister Amir-Ul Islam.
Barrister Rokanuddin Mahmud was not in favour of the reference itself. He said 57 army officers were killed in the BDR mutiny, more than were killed in the 1971 independence war and, therefore, the trial should be "exemplary".
But, Mahmud said, the mutiny case was filed under the criminal code. He said investigation was ongoing, with charges yet to be pressed and if the court gave answer to the president's reference it could "tie the hands of investigators".
Mentioning different examples in India and Pakistan's Supreme Court, he said the reference could be sent back.
Last week, advocate T H Khan had also spoken against trial under the Army Act, and against the reference itself, while barrister Rafique-Ul Huq and advocate Khandaker Mahbubuddin Ahmed said the border guards could be tried under military law by issuing notification under the Army Act, Section 5—though Mahbubuddin also said there may be some question about the notification's retroactive effect.
President Zillur Rahman sent a reference to the Supreme Court on Aug 17 seeking directives on the trial process.
The court has appointed 10 senior lawyers as amici curiae, literally 'friends of the court', to advise on the reference.
An inter-ministerial meeting on the BDR trial decided last month that the president would seek the chief justice's opinion on the BDR trial process as opinions varied widely on whether the accused mutineers should be tried under BDR, army or civil laws.
At least 73 people, including 57 army officers deputed to the paramilitary force, were killed in the bloody Feb 25-26 mutiny at the Peelkhana headquarters in Dhaka.
Attorney general Mahbubey Alam, presenting the reference before the court on Aug 25, said the mutiny case filed in Dhaka saw 1, 779 people arrested so far.
Another 40 cases filed in connection with BDR rebellions outside Dhaka saw 1, 721 persons arrested.
A total 3,500 people are facing trial in the cases, said Alam.
Source: bdnews24.com
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