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Mr. Khan Saifur Rahman (71), Senior Advocate, Supreme Court of Bangladesh, has started his carrier in legal profession at Barisal .Bar in 1962. He is a graduate from Barisal Brojomohan University College and obtained Bachelor of Arts degree in 1957. He studied law at Dhaka University (1959-61) and obtained his LL.B. degree. He was a teacher at Law College Barisal. Services rendered: Admiralty and Maritime, Alternative Dispute Resolution, Appellate Practice, Arbitration / Mediation, Banking, Bankruptcy, Claims Recovery, Commercial and Contract, Constitutional Law, Construction, Corporate and Business, Documentary Credit, Employment and Labor, Finance and Financial Services, Foreign Investment, General Practice, Immigration, Insurance, Intellectual Property, International, International Trade, Joint Ventures, Litigation, Mergers & Acquisitions, Property and Real Estate, Securities, Securities Laws and Regulations.

Banking Corporate and commercial Dispute resolution Energy Intellectual property Property and construction Shipping

Micro Mobilization for Macro Perspective KHAN SAIFUR RAHMAN

1. National identity card (which serves also the purpose of voters identity card) or voters identity card as the case may be, may be backed up by the requirements as follows:

(i) It shall contain the TIN number, if any, of the subject.

(ii) That the subject must maintain a savings Account number keeping in deposit at least Taka 100 (one hundred) in any scheduled Bank, which shall render on line service in a declared given area; and if he works for gain or philanthropy through a company, firm or body of persons, he shall maintain a current account for the purpose in addition to his personal savings Account; and his national identity card or voters identity card as the case may be, shall contain such account number/s.

(iii) Against the current account, there may be deposits of black money over a given period as to be determined by the Government from time to time and such deposits shall not be subjected to any liabilities civil or criminal only for once and where any black money of the subject is detected for the second time, such black money shall stand forfeited to the Government and such subject shall incur liability of a suspended sentence as a measure to prevent any further recurrence of such event. Any recurrence thereafter shall entail withdrawal of the suspension of the sentence making him liable to suffer the sentence with immediate effect, and shall follow, with immediate effect, removal of his name from the voters’ list with necessary entry in his identity card, of the fact of such removal.

(iv) That the scheme of savings account for all the voters of the country shall boost up national capital formation to an unprecedented scale and would create incentives for saving. The scheme shall felicitate combating national miseries such as floods, draughts, famine, unrest and any emergency situation. A sundry amount drawn from the savings account by consent of the subject through a call of patriotism can meet such a situation without any nervous concern of the nation as a whole. Such national approach shall consolidate cohesion of the multilingual, multinational and factional entities of the country.

(v) If the requirements hereinabove contained are materialised, it would eventually generate unprecedented inflow of currency notes in the shape of deposits in the Banks necessitating a mechanism as that of implanting a ferrule bulb regulating the outflow of the same as suits economic planning and management and protects the money value against fluctuation.

(vi) It would release tremendous capabilities to defense potential of the country and ensure national solidarity when the country is drawn into a war.

(vii) Gigantic economic undertakings providing strategic, significant or essential infrastructures, facilities or services directly or indirectly beneficial to the people in any given area or spread out throughout the country may yield to payment of toll and some portion of the toll proceeds may be awarded to the depositors as if such toll proceeds are dividends.

(viii) Bank financing on any project, undertaking or service out of the depositors money shall be subject to a nominal surcharge for payment to the depositors.

(ix) The toll proceeds and the surcharge are aimed at keeping soft and stable the rate of interest against the bank lending out of deposits.

(x) Notwithstanding anything to the contrary in any law, the holder of the savings account during his lifetime shall be entitled to nominate the recipient/s of the balance in the account, insurance policy attached to the account and all the debts and securities left by him after his death and shall have the right to record in that account and advise the bank for payment with binding effect therein, the manner of distribution, if relevant, amongst the recipient/s or where the case admits, to the sole recipient.

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Bangabandhu Murder Case Posted: 2008-02-29 21:24

(Bangabandhu Murder Case)

ROUND PEG IN SQUARE HOLE

For anybody concerned in the case of what is commonly known as the Bangabandhu Murder Case, there is a pressing need for assessing what kind of occurrence had taken place in the morning of 15th August 1975. It calls for a realistic legal formulations to judge which way the balance of justice tilts --- in favour of conviction to capital sentence or in favour of acquittal?

It is an admitted fact that uniformed members of the Army from the Dhaka Cantonment had made an outing during the night of 14th/15th August to cause the incident. Besides the military men, some ex-military men and some civilians seemed to have been involved in activities that caused the incident.

In the nature of the above incident, another incident took place in the night of 29th/30th May, 1981 at the Chittagong Circuit House. Some of the members of the Army from the Chittagong Cantonment made their way into the said circuit house where the-then President Ziaur Rahman was staying. He was killed by those military men in uniform.

In the latter incident, a general field court-martial was instituted on charge of mutiny, basing on the incident that occurred in the night of 29th/30th May. 12 military men went to the gallows in the result of the verdict given by the said court-martial. It may be noticed that the military offenders were put on trial by their domestic tribunal which was the said court-martial.

The only distinguishing feature between the two incidents --- one occurring August 14th/15th, 1975 and the other occurring 29th/30th May, 1981 is that in the former, besides military men, were also involved ex-military men and civilians; In the latter only exclusively military men were involved. That is the extent of the difference between the two. Now the question is --- will that matter anyway on that account?

To get to the answer, it calls for scrutinizing what constitutes mutiny, who are to be offenders and what is the extent of punishment for the same under the military law, more particularly under the Army Act. The provision relating to mutiny is enjoined in section 31 of the Army Act, 1952, which is reproduced below:

"Mutiny and insubordination - Any person subject to this Act who commits any of the following offences, that is to say, - 1. begins, incites, causes, or conspires with any other person to cause, or joins in, any mutiny in the military, naval or air forces of Bangladesh or any forces co-operating therewith or 2. being present at any such mutiny, does not use his utmost endeavours to suppress the same; or 3. knowing or having reason to believe in the existence of any such mutiny or any intention to commit such mutiny, or of any such conspiracy, does not without reasonable delay give information thereof to his commanding or other superior officer; or 4. attempts to seduce any person in the military, naval or air forces of B.D. from his duty or his allegiance to the Government of Bangladesh' shall, on conviction by court-martial, be punished with death or with such less punishment as is in this Act mentioned."

The above reproduction of the relevant provision of law clearly shows that a mutiny was staged in the Dhaka Cantonment in the night of August 14th/15th 1975 and the uniformed members of the Army (in the language of the said provision "persons subject to the Army Act".) incited and conspired together with other persons, that is to say, with other ex-military men and civilians (in the language of the said provision "with any other person".) and thereby caused and joined in the mutiny resulting in the killing of the-then President and others. Thus, if military men commit the offence of mutiny in combination with ex-military men and civilians as outlined in the said provision, they may be drawn within the ambit of the said provision of law.

In the latter incident a common law case was started as Chittagong Kotwali PS Case No. dated. under section 302. Penal Code. The case was investigated by the police and Final Report as True (FRT) was submitted. It is a necessary corollary that where the military offenders were brought to justice by court-martial, no further occasion would arise for their trial by the common law court. Mutiny is not a common law offence. It is anybody's guess that mutiny in its wake brings forth a result --- be that a killing, a rioting or anything; the result may be viewed as Penal Code offences but such offences are by no means separable from the offence of mutiny. In that view of the matter, the common law case of murder for the killing of the-then President Ziaur Rahman could not be viewed separately from the military offence of mutiny. To be more clear, where a mutiny is caused, a result is begotten, so the cause and effect are so inextricably intermingled that one cannot be separated from the other. Thus, mutiny culminates in a result and the whole matter is therefore to be amenable exclusively to the jurisdiction of court-martial.

It may be noticed that Captain Jamil Huq a member of the army approached the Supreme Court in his frantic effort to save himself from capital punishment awarded by the court-martial for committing mutiny resulting in the death of the-then President Ziaur Rahman by invoking the constitutional jurisdiction of the Supreme Court. Their Lordship's of the Supreme Court in the case of Jamil Huq v. Bangladesh reported in 34 DLR (AD)125, noted in that judgment (paragraph 28):

"These twelve petitioners have been tried and convicted by a court martial convened by the Chief of the Army Staff under the Army Act, 1952. They were charged with the offence of mutiny under the Army Act. The mutiny took place in the night of 29th/30th May, 1981, which resulted in the death of Ziaur Rahman, President of Bangladesh. These petitioners were sentenced to death."

The above reproduction from the judgment from the highest court of the country identified the killing the-then President Ziaur Rahman as a result of mutiny which was the subject-matter of court-martial. For a better understanding of the matter a further reproduction from the said judgment (from paragraph 42) is quoted as follows:

"Offence was a mutiny. The learned Counsel have criticized that the offence 'mutiny' has not been defined. Mr. Sirajul Huq argued the point and he referred to section 59 and submitted that it being 'murder' was a civil offence and therefore, the trial was bad. The argument overlooks section 31 which catalogues the offence of mutiny. Clauses (b), (c) and (d) highlight the point that even if any one is present at such mutiny and does not use his utmost endeavours to suppress the same or does not give information to his superior officers or even attempts to seduce any one from duty or allegiance to the Government shall be guilty of the offences. It is interesting to note that in England the Lewis Court Martial Committee in their report (1949) recommended that an attempt should be made to define the offence of mutiny in the light of present different conditions capable of too wider interpretation. Whatever it is, in the facts of the case there is hardly any scope for doubting that the offence does not come within the ambit of section 31 of the Army Act."

Thus, it is evident that in spite of the difference between the two incidents, the first one being caused by the members of the Army in combination with others and the other being caused exclusively by the members of the Army, there is no difference in the application of the provisions of the Army Act in general and mutiny in particular (resulting in death) in the incident of 14th/15th August 1975 in the same way the provision of the Army Act was applied for the incident, resulting in the killing of the-then President Ziaur Rahman. The occurrence of 14th/15th August 1975, resulted in deaths of the members of the household of the-then President Sheikh Mujibur Rahman including himself and the occurrence was clearly a mutiny, which cannot be separated from the killings. So, it is clear that this occurrence stood on the same footing with the subsequent occurrence thereby being exclusively liable to be tried by court-martial and not otherwise. It is therefore a misapplication of common law under which the military offenders of 14th/15th August 1975 were awarded capital punishment.

Another aspect of this case should not be lost sight of. The prosecution witness (PWs) consisted amongst others, of members of the military establishment of the time of the occurrence, they deposed in the case, to prove the occurrence, knowing or having reason to believe in the existence of any such mutiny or intention to commit such mutiny or of any such conspiracy, and without giving information thereof to their respective commanding or other superior officer. It is therefore clear that those PWs are clearly mutineers liable to be tried by court-martial and not to be qualified to depose for their commission of offence in the criminal court implicating the military offenders put on trial in that court.

Now a question may be raised if the military offenders were tried under the common law as they have so been done, how they were prejudiced? It is in the evidence of the case that some military offenders were dismissed from service for the incident of 14th/15th August 1975. It is also in evidence that on that account the Lancer Unit were disbanded in 1976. There might still be other punishments awarded to different military offenders causing the incident. This matter calls for a strict scrutiny and verification of the records of the Army in that respect. Worthwhile to mention in this connection that the tenets of military law in respect of whatever punishment whether major or minor is awarded on a military offender whether for committing offence major or minor, such military offender is immune from any punishment by the common law court.

In order to examine the matter, the provision of the Army Act after amendment No. 8.11.67 is reproduced below:

"96. Trial by Court martial, bar to subsequent trial by Criminal Court. Where a person subject to this Act is acquitted or Convicted of an offence by a Court martial, a criminal Court shall be debarred from trying him subsequently for the same offence or on the same facts."

Military law is a system of law or jurisprudence, which exists separate, and apart from the law which governs the judiciary of the country in its ordinary and general jurisdiction. In the civil sector of life there may be a fact which may constitute different offences triable in a single court or in different courts under different laws but in the military sector of life, there is the court-martial or the appropriate military authority to deal with the fact on the dimension of fact or on the dimension of offences involved in the fact or on the dimension of both. This approach of military law is significantly different from the approach of laws in the civil sector in that respect. The military law provides for civil offences that is to say Penal Code offences, pure and simple. But mutiny is an offence reserved to military law and justice but abetment of mutiny by any civilian would be tried by the criminal court of competent jurisdiction but the abetment of mutiny by a member of the Army would be covered by the fact of mutiny and not by the offence of mutiny.

Chapter VII of the Penal Code in the context of the offence of mutiny provides for offences of abetment for mutiny triable by criminal court subject to the provision 139 of the Penal Code, which reads as follows:

"139. No person subject to the Army Act, 1952, the Navy Ordinance, 1961, the Air Force Act, 1953, is subject to punishment under this Code for any of the offences defined in this Chapter."

The said provision of section 139 of the Penal Code shows that even no Penal Code offences under the said chapter VII relating to the Army shall be tried by the criminal court if the offender is a military offender.

For awarding punishment, no limitation is cast on the court-martial, which can inflict punishment, ranging from death, transportation for life to dismissal from service, imposition of fine and forfeiture of salary. The range of punishment of the court-martial is contained in Chapter VI of the Army Act and particularly in section 60 therein; minor punishments are envisaged in section 23 of the Army Act and such punishment may be awarded by competent military authority.

In view of the above it is very much clear that any Penal Code offence occurs in the result of mutiny, such Penal Code offence loses its separate entity as a Penal Code offence and merges in the fact of mutiny liable to be tried only by the court-martial or by the competent military authority.

The incident of 14th /15th August 1975 is the culmination of mutiny and no Penal Code offences can be deduced out of the result of mutiny. The provision of mutiny as appearing in section 31 of the Army Act absorbs into it any offence of conspiracy and thereby overrides the Penal Code offence of conspiracy as envisaged in section 120A and 120B of the Penal Code. The allegation of murder involved in the incident is also merged in mutiny and as such it can be said without hesitation that the conviction of the military offenders by the criminal court to capital punishment for Penal Code offences is palpably illegal and without jurisdiction. Once a mutiny is committed by the members of the Army, they are liable to be tried by military law --- no matter whether they were in service or not at the time of trial. In that respect, section 91 of the Army Act is relevant authorising a trial of mutiny without any period of limitation. Thus, the military offenders of 14th/15th August 1975 are liable to be tried only by court-martial or by any military authority only after conducting an investigation as per military law on the incident justifying the necessity of constituting a court-martial for trial of the military offender, if any, in due course of military law and legal expediency. It is also to be examined if any member/s of the Army having knowledge of the incident but not liable himself as a mutineer is/are available to be truly worthy of deposing as PW in the case.

Some of the military offenders had been dismissed from service on the facts of the same incident. Say, Lt. Col. Farook Rahman (Dismissed) is one of them and he cannot be tried on the same facts again. A probe is to be undertaken to verify if other military offenders convicted on account of the incident of 14th/15th August this way or other had been punished under the military law for arriving at a conclusion if they were to be subjected to a trial over again on the same facts. In the facts of the case, the military officers convicted in the case by the criminal courts should be delivered to the military authorities for being dealt with in accordance with military law.

CONCLUSION

Had the mutiny any goal which it had achieved is a different question. Are the mutineers liable in law in view of the success of the mutiny is also a different question. The mutiny is now on trial in the highest court of the country other than a military court; how the learned judges of the said court would view the case is a different question either.

Khan Saifur Rahman Advocate Supreme Court of Bangladesh