First amendment to the constitution in 1973 empowers the government to detain, prosecute and punish any person for war crimes the way it wants but the person cannot enjoy protection of law, protection in respect of trial and punishment and seek remedy from the Supreme Court (SC) for enforcement of fundamental rights as enshrined in the constitution.
The constitution also empowers the government to hold trial of the war criminals in camera.
With the demand for trial of the war criminals growing, some quarters are skeptical that it would be possible to prove the war crimes due to lack of evidence after such a long period.
Eminent jurists however said the government can resume trial of the war criminals only if it wants and can punish them without facing legal hurdles as sufficient number of evidence has been preserved by it. The process of trial was halted in 1975 after the August 15 changeover.
"The government has absolute power to frame any sort of law to try the war criminals. But it does not have such power in case of framing any other law since it will be declared void if it contradicts the constitution," Ghulam Rabbani, former judge of Appellate Division of the SC, told The Daily Star referring to Article 47 (3) of the constitution.
Former attorney general Mahmudul Islam in his book 'Constitutional Law of Bangladesh' said that in 1973 the Constitution (First Amendment) Act was passed inserting Sub-article (3) in Article 47 whereby any law providing for detention and trial of war criminals was kept out of the purview of provisions of part III (of the constitution) relating to fundamental rights.
Another jurist, Shahdeen Malik, said even if there are legal difficulties in brining the war criminals to trial, these difficulties can be removed or taken care of by promulgating ordinance or enacting law under the power given in Article 47 of the constitution.
"Article 47 authorises the government to take any legal measures for trial of war criminals and these measures cannot be challenged as unconstitutional," he said explaining the article.
Article 47 (3) of the Constitution says, "Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution."
Blocking the way for seeking remedy on grounds of breaching fundamental rights, Article 47-A says, "In applicability of certain articles,(1) The rights guaranteed under article 31. clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution."
On the right to protection of law, Article 31 of the constitution says to enjoy the protection of the law, and to be treated in accordance with the law, and only in accordance with the law, is inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
Article 35 of the constitution deals with protection in respect of trial and punishment and Clause (1) of the article says no person shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence.
Clause (3) of Article 35 says every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.
Article 44 deals with enforcement of the fundamental rights. Clause (1) of Article 44 says the right to move the High Court Division [in accordance with Clause (I)] of Article 102 for the enforcement of the rights conferred by this part is guaranteed and Clause (2) says without prejudice to the powers of the High Court Division under Article 102, parliament may empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.
Legal experts said the government of Bangabandhu in 1973 amended the constitution for the first time to ensure trial of the war criminals without facing any legal hurdles.
The government framed the Bangladesh Collaborators (Special Tribunals) Order, 1972, and started prosecution of the war criminals. But the August 1975 changeover changed the situation since the act was revoked on December 31 that year, burying the process of trial.
Asked why the successive governments in the past did not make any move to frame a law again under the constitutional provision, the jurists said they (governments) were busy with their partisan interests and tried to win support of the anti-liberation forces to grab state power. The successive governments also politically rehabilitated the notorious war criminals by amending the constitution and destroying the ideals of the Liberation War.
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Sign the Petition : Release the Arrested University Teachers Immediately : An Appeal to the Caretaker Government of Bangladesh
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Daily Star publishes an interview with Mukto-Mona
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Mukto-Mona Celebrates 5th Anniversary
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Mukto-Mona Celebrates Earth Day:
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MM Project : Grand assembly of local freedom fighters at Raumari
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German Bangla Radio Interviews Mukto-Mona Members:
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