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Tuesday, December 10, 2013

[] What is happening to Quader Molla. Updated at the below link when new information comes in

Molla's execution

What is happening to Quader Molla. Updated when new information comes in
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11.20 am: Apparently a number of tv stations reported last night that Attorney General met the Chief Justice in early hours this am, at around 1am. In court this am the Chief Justice rebuked journalists from reporting this, saying it was not true.

Clearly if that was true, that would be a rather serious issue.

11.15 am: Have heard that call between US sec of state and hasina about Molla execution did definitely take place this morning. Don't know any further details.

11.10 am: just to clarify issue about filing of review of app div judgment. The Defence had, until they sought a stay, not filed a review application but they filed it along with their stay application to the chambers judge, so say Defence lawyers. Apparently only recieved full set of certified copies of judgments yesterday afternoon.

11.00 am: So first court will decide issue of 'maintainability' of review application - the government argues that court has no authority to hear matter. If defence successful, then court will hear merits of review application. If court rules that not maintainable, then according to Defence lawyers they will argue stay on basis of jail code, and also defectiveness of warrant of execution. (See 9.07 pm)

10.50 am: Defence lawyers plead vociferously that matter should be adjourned until 2 January (after court holidays) but court having none of it. 

10.47 am: App Div court adjourns to 11.30 (50 min time) to hear arguments whether a review application before the appellate division is 'maintainable' or not

9.10: am: I can't confirm this but I have been informed that US Secretary of State John Kerry planned to speak to Sheikh Hasina at Bangladesh time (i.e that would have been ten minutes ago) apparently stressing how 'execution could derail election process'.

9.05 am: During the night, the UN issued a press release stating that:
'UN High Commissioner for Human Rights Navi Pillay on Tuesday called for an eleventh-hour stay of execution for Abdul Quader Mollah, a Bangladeshi politician convicted of war crimes in a trial that did not meet stringent international standards for imposition of the death penalty.'
It goes on:
The Office of the High Commissioner for Human Rights has written to the Prime Minister of Bangladesh, HE Sheikh Hasina, in a last-minute appeal to halt the execution.

In a statement last month, the High Commissioner urged the Government of Bangladesh not to proceed with the death penalty in cases before the International Crimes Tribunal, particularly given concerns about the fairness of the trials.

The United Nations opposes the imposition of the death penalty under any circumstance, even for the most serious international crimes.

Two UN Special Rapporteurs, on the independence of judges and lawyers, and on summary executions, have also called for the execution to be stayed.
9.00 am: Defence lawyers say that the legal hearing in the appellate division could start at 9.30 am

12.10 am: Well unless there are some further remarkable events tonight, that is it from me. Until another eventful day tomorrow, of course. To find out when next posting on this blog, or next live blogging, follow me on twitter: @davidbangladesh or 'follow' the blog Good night from Dhaka.

12.05 am: The Dhaka jail superintendant tells New Age that he has received a copy of the handwritten order and the execution has been stayed

12.00 pm: I am somewhat surprised that the Attorney General did not hotfoot over to the chamber judge and argue against a stay of execution. There may be a reasonable explanation for this but dont know what this is right now.

11.48 pm: I just spoke to Abdur Razzak, the chief defence lawyer. He said: 
'We are now in central jail. the court office is now closed so we cant have certified copy, so we have taken the clerk's assistant, Mr Islamuddin, who has personally accompanied us with court file, to show the jailer the hand written order which is signed by Justice Hossain'
In terms of the legal arguments that they made, Razzaq said that they were the following: 
'Our aguments were that we have filed review petitions before the appellate division this evening, and these are pending, and that the jail code applies, so Molla cannot be executed before 21 days have passed and have 15 days to decide whether to make mercy petition, and that the warrant of execution was defective'
 He said that the application was 'ex-parte' - that is to say that there were no lawyer present representing the government - though apparently the defence did try to serve the stay application on the attorney general's office. Present along with Razzak was Khondaker Mahbub

11.25 pm: At 7.05 pm, below, I set out the key weakness in the particular allegation upon which Molla was convicted and then subsequently received the death penalty. I shall be writing a seperate article on what the appellate division said about the issues set out there, but can I encourage those interested to read these articles below which sets out why there is so much legitimate concern about Molla being hanged in relation to this particular charge
Sole witness in Molla death case gave contradictory statements 
Unreliability of witness is reason alone why Molla should not hang 
Are the tribunal's justified in restricting defence witness numbers
11.08 pm: Another interesting omission in terms of last minute statements was from the UN. It has produced a statement yesterday from two special rapporteurs, but surely you would have expected the UN High Commissioner for Human Rights Navi Pillay to make an urgent request for halting the execution

11.06 pm: Statement from UK (8.44pm), statement from EU (9.50pm), but no statement from the US. Very odd, particularly since Ambassador Rapp made a call this morning to Shafiq Ahmed, the former law minister and now legal advisor to the prime minister, who made a number of apparent commitments to Rapp including that Molla's lawyers would be able to seek a review of the appellate division judgment. (see 7.20pm)

10.46 pm: Can there be any other suprises in store with this International Crimes Tribunal. Believe me there has been everything; abducted defence witnesses, secret skype tapes, alleged procured witnesses, violent and fatal attacks on prosecution witnesses ... and I have missed out lots. Enough already!

10.36 pm: Inspector General of Prisons says that he has yet to receive any order from the court to stay the execution. Well he has 1.5 hours to get it, but knowing how long its takes courts to ready their orders, that is not a long time! But news now breaking everywhere

10.22 pm: Chamber court, Justice Syed Mahmud Hossain orders stay of execution till 10.30am when full bench will hear stay application, Tajul Islam, a defence lawyer,  tells New Age

9.56 pm: Am told that we should hear very soon about last minute attempt by Defence lawyers seeking a stay of execution

9.50 pm: The EU Heads of Mission in Dhaka has published a statement on the Quader Molla hanging (see 8.44 for UK government's statement). It calls for halting the execution, and states that the EU 'notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.'
The European Union reiterates its opposition to the death penalty
The European Union is opposed to the use of capital punishment in all cases and under all circumstances, and has consistently called for its universal abolition. The European Union has followed the judicial proceedings in Bangladesh concerning the crimes committed during the war preceding the independence of Bangladesh in 1971. From the start of the trials, the European Union has repeatedly stressed its concern about the possible application of the death penalty under the International Crimes (Tribunals) Act.

The case of Mr. Abdul Quader Mollah has now reached a stage where an execution of the death sentence given by the Supreme Court on 17th September could be imminent. The European Union notes the concerns that have been expressed by the United Nations special rapporteurs on independence of judges and lawyers and on summary executions regarding the lack of opportunity for appeal or review of the sentence. The European Union calls for these concerns to be addressed before taking the process further.

In this context the EU reiterates its position regarding the recent death penalties issued by the International Crimes Tribunal and the Supreme Court as well as the 152 death sentences that were recently handed down in the trial following the BDR mutiny in 2009. The European Union calls on the Bangladeshi authorities to commute these sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment
9.40 pm: Quader Molla's family was allowed to stay for 30 minutes inside the jail speaking to Molla. The son said afterwards that his father said that it was a 'political killing' due to the fact that he was involved in 'islamic politics'

9.27 pm:  So, the Chamber Judge whom the defence lawyers have gone to see is Justice Syed Mahmud Hossain. He was, can you believe it, one of the five judges sitting on the appellate division bench hearing the appeal against Molla, and one of the four who agreed with the death penalty. All he said in the judgement was:
'I have gone through the judgements to be delivered by my learned brothers, Surendra Kumar Sinha, J, my learned bporther Mr Abdul Waham Miah, J [who dissented] and my learned brother ANM Shamsuddin Choudhury, J. I agree with the judgment of my learned brother Sinha J.'
Sinha gave the majority judgment

9.11 pm: Person in contact with defence lawyers says that apparently 'Molla is not seeking clemency'.

9.07 pm: Likely immediate legal issue that defence lawyers will raise with appellate division judges is legality of the warrant of execution - they already sent a notice to the prosecutors on this issue as part of informing them that they were about to file a review application. I have written about the claim that the warrant of execution is defective here.

By the way, fact that defence lawyers have sent a notice to prosecutors informing them that they were about to file a review shows how dishonest the state minister for law is (see 8.20)  when he said that he was surprised that the lawyers had not yet filed a review. The lawyers should in principle have a month to file application according to the appellate division rules

8.50 pm: The defence have sent out two legal teams seeking a stay of execution. One to the chambers judge and one to the chief justice. The judge in chambers has apparently asked for the Attorney General to attend.

8.44 pm The UK government's Senior Foreign Office Minister, Baroness Warsi has issued a statement.  It reads:
"I am deeply concerned at reports of plans to execute Abdul Qader Mollah in the coming days.
"The UK opposes the death penalty in all circumstances as a matter of principle. We consider that its use undermines human dignity and that there is no conclusive evidence of its deterrent value. We further note that Abdul Qader Mollah was sentenced to death following an appeal permitted under retrospectively applied legislation, and that he was not permitted to review his sentence before the Supreme Court. Bangladesh's commitments under the International Covenant on Civil and Political Rights (ICCPR) require that all citizens be treated equally before the law.
"The UK calls again for Bangladesh to implement a moratorium on the death penalty leading to the eventual abolition of the death penalty."
The toughest statement so far from the UK government, who in public have been very reluctant to say very much on this issue

8.35 pm. Inspector General of Prisons says that five hangmen are ready and prepared in Dhaka Central Jail

8.30 pm: Molla's defence lawyers are on the way or about to be on their way to the Chief Justice's house seeking a stay of execution. My view: highly unlikely that something will come of this. (if I said why, could be in contempt of court!)

8.20 pm: More detail on what Quamrul Islam said at the press conference (see 7.55). He said that Molla was offered to seek clemency before two magistrates and he did not do so. Also said that Molla had not sought a review before the chambers judge of the appellate division in the last three dayas he thought that he would, though at the same time saying he did not think Molla had the right to make such an application.

Main reason why Molla's lawyers not filed the review application, according to the lawyers,  is that they needed copy of the certified copy of the judgment and had not been provided these!

8.00 pm: An alternative explanation (see 6.55 and 7.40) of why Molla is being executed has been given to me by one diplomat.  The first signs of a dialogue are starting - not yet close to an agreement - and the government might want to put the BNP into a difficult position. Either the BNP could side with Jamaat and be outraged with the execution and come out of the talks - and then the Al government says, well we told you so, the BNP don't really want dialogue. Or the BNP continues with dialogue and there are strains in relationship with the Jamaat.

7.55 pm: Some plain speaking. There is absolutely no way that the state minister for law can say that all legal options exhausted (see 7:46). The government cannot claim that the defence had no right to a review - that was for the court to decide (see 7.40), and of course Shafique Ahmed told Ambassador Rapp (see 7.20) that Molla had a right to seek review. In addition, only this morning government officers were saying that the jail code did apply and that Molla had seven days to decide whether to seek clemency. The level of disingenuousness here is quite remarkable

7.46 pm: State minister for law, Quamrul Islam tells media that all legal options for Molla were 'exhausted', and that Molla could have sought mercy but did not take opportunity though he was offered it.

7.42 pm: Family of Quader Molla, now waiting outside jail gate

7.40 pm: Some people are not convinced by explanation at 6.55pm - and argue that political deal is unlikely. It could be because the government wanted to avoid various legal complications that could delay the process. There are three issues: (a) defence lawyer arguments that warrant of execution is defective. (b) application to the appellate division for a review of the appellate court's own order. Whilst this was unlikely ever to succeed, the appellate division bench is going on holiday at the end of the week. (c) the defence may have tried to argue that not only jail code applied, but the amended ones applied which give 15 days for a mercy petition.

7.25 pm: State minister for home affairs has confirmed that execution of Molla will take place at 12.01 am

7.20 pm: At today I spoke to Shafique Ahmed the former law minister and currently adviser to the prime minister and he confirmed that he had spoken to Stephen J Rapp the US Ambassador-at-Large who heads the office of global justice. Shafique Ahmed told me that he had told Rapp that he was 'no longer in charge and was just an adviser to the prime minister.'

'Rapp expressed his [concerns], and I told him that I would try to convey them to the correct authorities,' he said. 'I told him that all due processes will be maintained, and that Molla could seek clemency from the president under the constitutional provision. This right is available to everyone,' he said. Shafique was apparently referring to article 49 of the constitution which states that, 'The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.' He also said that Molla would have the right to go seek a review of the appellate divisions judgment.

It appears that the government may well break these two apparent commitments if Molla is in fact hung tonight.

7.15 pm: A colleague spoke to the Inspector General of Police earlier this evening and was told that 'everything was ready for the execution', but did not say when it would take place

7.05 pm: It is important to remember the following: the case on which Molla is being hung involves the murder of six members of one family. There was only one witness to the incident, a daughrer of the family who was the sole survivor. She was 13 years at the time. In her testimony in court, she said that on 26 March 1971 her father ran towards the house and said "Qader Molla will kill me" and that Quader Molla pulled her father by the collar, and draged him out of the house, The men then killed her mother, three sisters (one of whom was first raped) and baby brother. 
After the incident, she said, 'A person called Kamal Khan who served tea to freedom fighters told me, "Quader Molla killed my parents." My Ukil Baba [marriage witness] Akkas Molla also told me the same thing ...' 

There are significant weakenesses about the evidence given by Momena, now aged about 55 - she had given two previous statements which contradicted her testimony in court . 

The first statement was given on September 28, 2007 – five years before she she testified in court - when she was interviewed by a researcher, working at Jallad Khana, the annexe of the Liberation War Museum at Mirpur. 

In the statement, there is no mention of Molla.  'Biharis surrounded [Momena's father's house] house and took [her father] away,' the statement reads. 
 It also states that Momena had told the researcher that she was not present during the incident: 'Because the elder daughter of Hazrat Ali, Momena Begum, left for her father-in-law's house two days earlier, she remained alive.'

The statement went on: 'After a few days, the elder daughter of Hazrat Ali, Momena Begum, came to know everything about what happened but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.'

The second inconsistent account given by Momena was to Mohana Begum, the deputy investigating officer assigned to investigate the case against Molla.
 Whilst in this statement, Momena said that on March 26, 1971, she was in the house when her family was killed, there is, again, no mention of Molla's presence.

Instead, Momena told the investigation officer, as she had previously told the museum researcher, that the men who came 'were Biharis. They entered along with the Pakistani soldiers.' 
 In fact, Momena specifically told the officer that one person was present. 'I know all the Biharis. Aktar Gunda was with them. He was known as a gunda (criminal) in our locality,' she stated. 

Molla's name is mentioned twice in the investigation officer's report. 
Momena is quoted as saying: 'When the war broke out, [Akter Gunda] joined with Quader Molla of Duaripara and started to kill people in Mirpur' and subsequently, 'I heard about Quader Molla and Aktar Gunda and their force from people around.' 
 However, the statement contains no allegation that Molla was present at the time of this offence.

To read more about this, click here and here

6.55: How to explain what is going on? One explanation is that the sudden turn around (earlier this morning there was talk of 7 days period for Molla to consider clemency application (see below) is an indication of progress on a possible deal brokered by the UN Assist Sec Gen currently in Dhaka concerning an election time government. Perhaps the government realises that it may soon be losing executive power and so it needs to execute Molla whilst it has control of the state apparatus?

6.50pm: We will all know more soon as the state minister of law, Quamrul Islam has asked journalists to come to his house for a press conference. Must be about Molla

6.30pm: About an hour ago, Quader Molla's wife was hand delivered a letter asking that the family go to Dhaka Central Jail. This is usually an indication that the execution will take place. This is a reversal of the situation this morning where government officials had said that Molla would be given seven days to decide whether or not to seek presidential pardon. Of course, this morning's position was a reversal of yesterday's position which was that the jail code did not apply at all!
Posted by David Bergman at  6:48 PM  

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