96
The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu
Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings. …(49). In the case in our hand, at pre-trial stage, for the purpose of effective investigation this Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proceedings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial. …(53). That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible. …(54). International Crimes (Tribunals) Act [XIX of 1973] Section 3 [1]. Constitution of Bangladesh,1972 Articles 47[3] and 47A [2]. The subsequent amendment as brought in 2009 Act of 1973 by inserting the phrases ‘individual’ and groups of individuals in section 3(1) of the Act carries prospective effect the present accused cannot be prosecuted in the capacity of an individual for the offences, underlying in the Act as has been submitted on behalf of the accused. The words
2 LNJ (2013)
‘individual’ or ‘group of individuals’ have been incorporated in section 3 of the Act of 1973 as well as in Article 47(3) of the Constitution by amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution. Hence the accused has no right to call in question any provision of the Act of 1973. …(55 and 59). Can Tripartite Agreement and immunity to 195 Pakistan war Criminals be brought to justice? Any agreement or treaty if seems to be conflicting and derogatory to jus cogens (Compelling Laws) norms does not create any hurdle to internationally recognized state obligation the tripartite agreement is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973. Whether the accused can be prosecuted without prosecuting his accomplishes. If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved from liability. In this regard we may recall the provision as contained in section 4(1) of the Act of 1973. …(71). International Crimes (Tribunals) Act (XIX of 1973) Section 19 (3) If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that they were committed in the ‘context’ of the 1971 war. This context itself is sufficient to prove the existence of a ‘systematic attack' on Bangladeshi self-determined population in 1971. The Tribunal, as per section