Dhaka, Sept 2 (bdnews24.com)--Legal experts Dr Kamal Hossain and advocate Mahmudul Islam on Wednesday told the Supreme Court that the offences perpetrated during the Feb 25-26 BDR mutiny cannot be tried under the military law.
Dr Kamal, one of 10 amici curiae appointed by the court to assist the court to decide on the trial of the rebellion on a reference by the president, continued his deliberations for a second day when the court resumed hearing for a fifth day.
He said on the second day of his submission 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 told the 11-strong full bench of the Appellate Division headed by chief justice M M Ruhul Amin.
Advocate A F Hassan Ariff started giving his observations when the court adjourned for the day, having resumed at around 10:20am. In between, Mahmudul Islam, barrister Ajmalul Hossain and barrister Rokanuddin Mahmud gave their opinions.
A written submission on the presidential reference were made by Mahmudul Islam and Ajmalul Hossain, who are currently abroad.
Dr Kamal said on Tuesday that a notification to try the accused under the Army Act could not have retrospective effect to cover the events of February.
Barrister Amir-Ul Islam and advocate T H Khan had also opposed trial under the Army Act during previous hearing.
But barrister Rafique-Ul Huq and advocate Khandaker Mahbubuddin Ahmed had said that that the border guards could be tried under military law by issuing notifications.
Dr Kamal added that two questions were raised by the president's reference: Whether the provisions of the Army Act, 1952, can be applied against the border guards involved in the mutiny; and, if not, whether the provisions of the Army Act can be applied against the mutineers by issuing notification under Section 5 of the Act.
"The Bangladesh Army Act, 1952 in Section 2 defines the persons who are subject to the Act. The BDR personnel do not fall within the definition of Section 2."
"The second question to be answered is by reference to Section 5 of the Act. Under Section 5, by a notification, the Army Act could be extended to members of a disciplined force raised and maintained by the government."
"But under the existing law, such a notification cannot have retrospective effect," said Hossain.
"Therefore, since the question addressed to the court is whether the Army Act can by notification be applied to [the BDR mutineers], the answer is that this cannot be done as the alleged offences were committed on 25 and 26 February and the notification cannot be given retrospective effect."
Barrister Amir-ul Islam told reporters after Tuesday's hearing: "It is impossible to try the crimes mentioned here under the Army Act."
"There is no scope for application of the Army Act here. It cannot be given retrospective effect," he said.
"The trial of such crimes should be held in a special tribunal," he said.
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.
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