CLA expresses Grave concern over scheduled execution
of Motiur Rahman Nizami and Mir Quasem Ali
The Commonwealth Lawyers Association (CLA) has a clear policy against the use of the death penalty in any circumstances. Two cases arise in Bangladesh were, despite concerns with process acknowledged by the Bangladesh Supreme Court, death penalties have been confirmed. This evinces the very danger the CLA policy strives to prevent.
In dismissing the appeals against convictions handed down by the Bangladesh International Crimes Tribunal (ICT) in respect of Motiur Rahman Nizami and Mir Quasem Ali, the Supreme Court has failed to address the clear fair trial and due process violations, despite acknowledging them occurring in the proceedings.
Bangladesh has certain obligations that it must discharge as a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) and the Commonwealth Charter. The ICT as yet, has failed to do so.
Further, as a member of the Commonwealth family of nations, it has further obligations as far as the promotion of the administration of justice and protection of human rights is concerned, in accordance with the principles enshrined in the Harare Declaration of 1991, the Latimer House Guidelines of the Commonwealth 1998, and the Commonwealth Charter of 2013.
Again, the ICT, and therefore Bangladesh has failed to adhere to these principles.
The intention to seek to address the impunity arising out of the 1971 War of Independence is and ought to be applauded. It is imperative that those accused of such heinous crimes are investigated, and where there is evidence, prosecuted.
These investigations and prosecutions however must not come at the cost of justice, of independence, and of fairness.
It is telling that the Chief Justice in hearing the above two appeals, acknowledged on numerous occasions that there were significant deficiencies within the prosecution case. Asking the Attorney General more than once to direct the court to the evidence which showed the guilt of the accused, and expressing his concern and at one stage, his “shame” that the cases had been conducted in such a manner.
The CLA calls upon the Government of Bangladesh to abolish the use of the death penalty and foster and support a true transitional justice process that offers real justice in accordance with those obligations to which the State is bound.
Whilst acknowledging the sovereignty of all governments, the CLA is committed to advocate for the abolition of the death penalty in Commonwealth jurisdictions wherever it remains as an available sentence.
COMMONWEALTH LAWYERS ASSOCIATION
Notes to the Editor
The CLA is a pan-Commonwealth organisation which seeks to uphold the rule of law in the Commonwealth by encouraging exchange of ideas between legal professionals, academics and students, through projects and by driving improvements in legal education.
NAZ FOUNDATION PLEA FOR LGBT RIGHTS TO BE HEARD
The Supreme Court of India is going to hear later today the Curative Petition of Naz Foundation, the leading gay rights NGO and several eminent personalities. It is the last legal recourse after dismissal of their review petition, where they sought for decriminalising Article 377 of the Indian Penal Code, which makes gay sex, irrespective of age and consent, a punishable offence.
Earlier in February 2001 Naz Foundation filed a Writ Petition before the Delhi High Court challenging Sec. 377 of the Indian Penal Code. By its judgement delivered in July 2009 the High Court decriminalises the consensual acts between adults in private, by holding Sec. 377 IPC as unconstitutional. In December 2013 the Supreme Court of India reverses the widely accepted judgement of the Delhi High Court and subsequently dismisses the Review Petition in January 2014.
It is their plea that there cannot be any compelling state interest to deny LGBT community privacy and dignity by criminalising consensual sexual acts in private.
Some, among others before the Supreme Court, are Senior psychiatrists, Psychologists, Counsellors and Mental Health Professionals including an editor of Influential Lancet Series on Global Health. Their plea is that homosexuality was not a mental disorder, but a normal and natural variant of human sexuality.
They argue that the Supreme Court in their last two verdicts reached no clear consensus on the very purpose of continuing with the colonial era Section 377 and that the court committed a patent error of law in concluding that there have been only 200 prosecutions in over 150 years and that by doing so the judgement has introduced a numerical requirement for the protections of Fundamental rights under the Constitution ignoring the fact that even miniscule minorities are entitled to full protection. They further contend that the restrain shown by Parliament in not discussing Secretion 377 during the debates on rape law in the Criminal Law (Amendment) Act, 2013 was misconstrued by the Court as a legislative endorsement of the unconstitutional provision.