Advocate Mureshedur Rahman Chowdhury Vs. Bangladesh and others [4 LNJ (2015) 267]

Case No: Writ Petition No. 1750 of 2012

Judge: Md. Muzammel Hossain,Sheikh Hassan Arif,Farid Ahmed,

Court: High Court Division,,

Advocate: Mahbubey Alam,Samarendra Nath Biswas,Mr. T. H. Khan,Mr. A.K.M. Fakrul Islam,Mr. Md. Mostafa Kamal,Mr. Md. Motahar Hossain,Ms. Purabi Shaha,,

Citation: 4 LNJ (2015) 267

Appellant: Advocate Mureshedur Rahman Chowdhury

Respondent: Bangladesh and others

Subject: Writ Petition, Locus Standi, Retrospective Effect,

Delivery Date: 2012-06-19


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Farid Ahmed, J,
And
Sheikh Hassan Arif, J.

Judgment on
13.05.2012
19.06.2012
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Advocate Mureshedur Rahman Chowdhury
. . . Petitioner
-Versus-
Bangladesh and others
. . .Respondents
 
 
International Crimes (Tribunal) (Amendment) Act (LV of 2009)
Section 3
Per Farid Ahmed, J, Presiding Judge: The moot question as has been raised by the learned Advocate for the petitioner is that whether the amendment of section 3 of the International Crimes (Tribunal) Act shall operate retrospectively or prospectively and that during amendment of the ICT Act it had any constitutional sanction. This question should be examined by this Court. Accordingly, a Rule Nisi was issued.   . . .(2 and 3)
 
Constitution of Bangladesh, 1972
Articles 47(3), 47A and 102
International Crimes (Tribunal) (Amendment) Act (LV of 2009)
Section 3
Per Sheikh Hassan Arif, J (Dissenting): Although, initially, section 3 of the ICT Act, 1973 gave jurisdiction upon the ICT to try and punish only the members of armed, defence or auxiliary forces, the impugned amendments extended its jurisdiction to try and punish any individuals or group of individuals. According to Mr. Khan, this can not be done after 40 years of the liberation war. His apprehension is that it well give the executive authority an unfettered power to bring any one within the scope of the I.C.T. If this argument is accepted, it will apply to any provisions of the Penal Code as well. This scurrilous disbelief towards all the institutions, investigating agencies, the ICT and the judiciary of this country in such a sweeping way is not acceptable. On the other hand, criminal liability does not lapse with the efflux of time. Therefore, this argument has no substance. Since Articles 47(3) and 47 A of the Constitution  have completely debarred any challenge against the trial of crimes against humanity and war crimes by the ICT, and I am of the view that the petitioner does not have locus standi even to move the petition as public interest litigation, this petition does not deserve any Rule.          . . .(11 and 14)
Beru Bari Case [reported 26 DLR (AD) 44] and Dr. Mohiuddin Farquk Case [49 DLR (AD) 1] ref.
 
Mr. T.H. Khan, Advocate with
Mr. A.K.M. Fakrul Islam, Advocate with
Mr. Md. Mostafa Kamal, Advocate
. . . For the petitioner.

Mr. Mahbubey Alam, Attorney General
Mr. Md. Motahar Hossain (Saju), D.A.G. with
Mr. Samarendra Nath Biswas, A.A.G.
Ms. Purabi Shaha, A.A.G
.  . . For the Respondents.

Writ Petition No. 1750 of 2012

Judgment
FARID AHMED, J:
 
International Crimes (Tribunal) Act, 1973 was promulgated making provision for providing 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. Section 3 of the said Act has been amendment on 14.7.2009 by inserting the provision to prosecute “individual or group of individuals” with immediate effect. Thereafter 15th amendment of the constitution was made on 3.7.2011 by amending Article 47 (3) adding and making amendment into the Constitution to try the “individual or group of individuals or organization”.
 
Now the question has been raised by the learned Advocate for the petitioner, whether the amendment of section 3 of the International Crimes (Tribunal) Act shall operate retrospectively or prospectively and that during amendment of the ICT Act it had any constitutional Sanction. This question should be examined by this Court.
 
The learned Attorney General has referred 3 decisions passed in W.P. No. 7353 of 2010, W.P. No. 5391/2010 and the judgment and order passed in Criminal Misc. Case No. 34345 of 2010. In all those cases, the points raised in the present Writ Petition have not be decided.
      
Let a Rule Nisi be issued calling upon the Respondents to show cause as to why the section 3 of the International Crimes (Tribunals) (Amendments) Act, 2009 effecting amendment of section 3(1) of the International Crimes (Tribunal) Act, 1973 by insertion of the expression “any individual or group of individuals” shall not be declared to be ultra vires the Constitution and also declared to have been enacted without lawful authority and is of no legal effect and why section 19 of the Constitution (Fifteenth) Amendment Act, Amending Article 47(3) of the Constitution by the insertion of the expression “ or any individual, group of individuals or organization” shall not be declared ultra vires the Constitution and also be declared to have been enacted without lawful authority and is of no legal effect  and/or pass such other or further order or orders as to this Court may seem fit and proper.

The Rule is made returnable within 4 (four) weeks.
 
SHEIKH HASSAN ARIF, J (Dissenting):
 
Since I could not persuade myself to agree with his Lordship, the presiding Judge, to issue Rule Nisi in this matter, I humbly beg to pass the following dissenting order:
 
The petitioner, who is an advocate by profession, has filed this application under Article 102 of the Constitution of the People’s Republic of Bangladesh questioning the constitutionality of section 3 of the Interna-tional Crimes (Tribunals) (Amendments) Act, 2009 effecting amendment to section 3(1) of the International Crimes (Tribunal) Act, 1973 by insertion of the expressions “any individual or group of individuals”. The petitioner further challenges the constitutionality of section 19 of the Constitution (Fifteenth) Amendment Act, 2011 amending Article 47(3) of the Constitution by inserting therein the expressions “or any indiv-idual, group of individuals or organization”
 
Mr. T.H. Khan, learned senior counsel appearing along with Mr. A.K.M. Fakrul Islam, learned advocate, for the petitioner, submits that the impugned amendments have been made for bringing some new persons into the scope of the trial by the International Crimes Tribunal (“I.C.T”) with malafide intention. He submits that since the said amendments have been given retrospective effect, the same should be declared ultra virus the Constitution. Learned advocate further submits that the impugned amendments have abridged the fundamental rights of the millions of citizens of this country as the same placed them at the mercy of the executive authority and as such the same is a colourable exercise of legislative power and a fraud on the Constitution. Referring to the Bangladesh Collaborators (Special Tribunals) Order, 1972 (P.O. 8 of 1972), Mr. Khan argues that the impugned amendments have been done for usurpation of the jurisdiction of the Tribunals which may be constituted under the P.O. 8 of 1972 as the P.O. 8 of 1972 is meant for the trial of individual or group of individuals for the same offence. Learned advocate finally submits that the impugned amendments have also dismantled the basic structure of the Constitution and as such the same should be declared ultra virus the Constitution.
 
Mr. Mahbubey Alam, learned Attorney General for Bangladesh, seriously opposes the issuance of Rule Nisi on the ground that the instant writ petition is a frivolous one being devised by the same learned advocate, namely Mr. A.K.M. Fakrul Islam, who has been taking recourse to the same practice and filing applications one after another before this Court only to jeopardise the trial of some individuals who allegedly committed crimes against humanity and war crimes during our war of liberation. Referring to the rejection orders passed in Writ Petition No.6836 of 2010, Writ Petition No.5391 of 2010, Writ Petition No.7353 of 2010 and Criminal Miscellaneous Case No 34345 of 2010 (Moulana Motiur Rahman Nizami-petitioner), learned Attorney General submits that in all those matters the trial by the ICT of persons for committing war crimes and the crimes against humanity was challenged on several pretexts, but this Court rejected those applications summarily. Mr. Alam further raises serious objection as to the Locus Standi of the petitioner for filing the instant application on the ground that the petitioner is a busy-body and just being used for moving this Court under Article 102 to circumvent the complete bar against such petitions as provided under Articles 47(3) and 47A of the Constitution.
 
Heard the submissions of the learned advocates, perused the writ petition and papers annexed thereto. On the issue of Locus Standi Mr. T.H. Khan submits that since one Advocate’s Locus Standi in Beru Bari Case was allowed by our Appellate Division, the petitioner, being an advocate, should also be allowed locus standi since the matter involves important questions of law regarding the interpretation of the Constitution. It appears from the decision in Beru Bari Case [reported in 26 DLR (AD)-44] that the circumstances for allowing locus standi to the learned advocate in that case were totally different from the present ones. In Beru Bari case, the fundamental rights of the said Advocate to move freely through out the territory of Bangladesh, to reside and settle in any place therein as well as his right of franchise were affected and as such he was allowed to challenge an international treaty. In this matter before us, the petitioner, under paragraph-3 of the writ petition, has explained his locus standi. Having gone through the said statements, I am of the view that the same are amorphous and vague. Neither he is an accused, nor a prospective accused before the ICT nor he has any possibility of being implicated in any case before the International Crime Tribunal as his present age, according to him, is 41 years. The milestone case in our jurisdiction on the question of locus standi in public interest litigation is Dr. Mohiuddin Faroque’s case [49 DLR (AD)-1], which expanded the then existed restricted view of locus standi. Even after such expansion, our Appellate Division cautioned about the busy-bodies of this Court who might come up with frivolous applications under the garb of public interest litigation. In this regard, paragraph 50 of the said judgment may be referred to. This being the factual and legal position, the petitioner is no better than a busy-body and as such has no Locus standi to move this petition.
 
Now, the question of retrospectivity. The crimes against humanity or war crimes normally do not exist in the statute book of a country as the war crime or crimes against humanity do not occur often. Parliament of a State is not prescient of everything. Those abominable crimes are exceptional and they only take place in a war or a war like situation. For that reason even the Collaborators (Special Tribunals) Order 1972 (P.O. 8 of 1972) was given retrospective effect for punishing the abettors or collaborators of war crimes or crimes against humanity, although the said crimes took place before the promulgation of the said P.O. 8 of 1972. Immediately after the promulgation of P.O. 8 of 1972, the first Parliament of the newly borned Bangladesh gave complete protection to the trial of the said crimes vide Article 47(2) of the unamended Constitution. Thereafter, the first amendment to the Constitution inserted therein sub-article (3) after sub-article (2) of Article 47, and a separate Article, being Article 47A, was added giving complete protection to any trial of persons who had allegedly committed crimes against humanity or war crimes etc. This protection even extends against any challenge on the ground of retrospectivity. Just after five days of the 1st amendment to the Constitution, i.e. on 20.07.1973, International Crimes (Tribunal) Act, 1973 (“ICT Act, 1973”) was enacted making provisions for the trial and punishment of persons accused of committing war crimes or crimes against humanity etc.
 
It is well established principle of law and interpretation that the preamble of an Act discloses the intention of the Legislature for enacting the said Act. The preamble of the ICT Act, 1973 is quoted below:

An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other  crimes under international law.
Whereas it is expedient to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law, and for matters connected therewith;” (Underline supplied)
 
It appears from the above quoted preamble that the Legislature enacted the ICT Act, 1973 to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law. Although, initially, section 3 of the ICT Act, 1973 gave jurisdiction upon the ICT to try and punish only the members of armed, defence or auxiliary forces, the impugned amendments extended its jurisdiction to try and punish any individuals or group of individuals. According to Mr. Khan, this can not be done after 40 years of the liberation war. His apprehension is that it well give the executive authority an unfettered power to bring any one within the scope of the I.C.T. If this argument is accepted, it will apply to any provisions of the Penal Code as well. This scurrilous disbelief towards all the institutions, investigating agencies, the ICT and the judiciary of this country in such a sweeping way is not acceptable. On the other hand, criminal liability does not lapse with the efflux of time. Therefore, this argument has no substance.
 
Again, although the petitioner has raised the issue of dismantling the basic structure of the Constitution, apart from a mere statement, neither the petitioner in the petition nor the learned advocate for the petitioner has been able to substantiate it. Further, the question of usurpation of jurisdiction of the Tribunal under Bangladesh Collaborators (Special Tribunals) Order, 1972 does also not arise as the P.O. 8 of 1972 does not contain any provision debarring inclusion of any individual or group of individuals within the scope of the I.C.T. Act, 1973 by subsequent amendments.
 
It further appears from the order dated 02.02.2011 passed in Writ Petition No. 7353 of 2010 that the Hon’ble 3rd Judge of this Court, in rejecting the same summarily, has already expressed anger about the retrograde conduct of the learned advocate Mr. A.K.M. Fakrul Islam. In this regard, his Lordship Mr. Justice Md. Imman Ali observed that the said learned advocate “must take care that this type of conduct should never recur in future”. His Lordship also warned the petitioner of that writ petition about his derogatory comments against the liberation war of Bangladesh holding that the comments were utter distortion of historical facts and brought into question the ethos of liberation war and was a slur on Bengali nationalism. I have also perused the orders passed by this court in other matters as referred to by the learned Attorney General. It appears that the instant writ petition is another frivolous attempt just to jeopardise the long cherished trial of war criminals. Although the name of Mr. A.K.M. Fakrul Islam, learned advocate, is cunningly absent from the record, it is him who has been seeking adjournments etc. since filing of this writ petition. Even today he has been actively assisting Mr. Khan as a junior counsel. Thus, it is clear that it is him who is behind this time consuming and outrageous exercise.
 
Since Articles 47(3) and 47 A of the Constitution  have completely debarred any challenge against the trial of crimes against humanity and war crimes by the ICT, and I am of the view that the petitioner does not have locus standi even to move the petition as public interest litigation, this petition does not deserve any Rule.
Accordingly, the Writ Petition is rejected summarily.
 
Editors Note:
 
The matter was referred to the Hon’ble Chief Justice for steps to settle the case by a third opinion. Hon’ble Chief Justice remitted the matter to Mr. Justice M. Moazzam Husain  for his opinion. Moazzam Husain, J, the Hon’ble third Judge, gave his opinion which stood in agreement with that of Sheikh Hassan Arif,  J.
 
Judgment
 
Constitution of Bangladesh, 1972
Articles 47(3), 47A and 102
International Crimes (Tribunals) Act (XIX of 1973)
Section 3(1)(2)
International Crimes (Tribunals) (Amendment) Act (LV of 2009)
Section 3
Vires of section 3 of the International Crimes (Tribunals) (Amendment) Act, 2009, is challenged before the Division Bench comprising Mr. Justice Farid Ahmed and Mr. Justice Sheikh Hassan Arif as the section seeks to extend the ambit of category of persons to be brought under trial by the ICT adding the words and commas “Any individual or group of individuals” to the original expression “any member of any armed, defence or auxiliary  forces” on the ground, inter alia, that by the Amendment millions of people of the country will be thrown to the mercy of the prosecuting agencies and their fundamental right to freedom will be at jeopardy and that amendment is violative  against the principle  of retrospectivity. According to the petitioner this amendment is likely to usurp the jurisdiction of Tribunals created under the Collaborators (Special Tribunal) Order, 1972, and subject citizens to double jeopardy without discrimination. More so, this will offend against the basic structure of the Constitution.
The International Crimes (Tribunals) Act, 1973, for that matter the International Crimes (Tribunals) (Amendment) Act, 2009 are meant for trial of offences recognized under the international law irrespective of violation of domestic law.  Section 3(2) of the ICT Act has enumerated a list of crimes recognized under the international law, and says, inter alia, that it shall be competent for the ICT to try “murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhuman acts committed against any certain population or persecution on political, social, ethical, or religious grounds whether or not in violation  of domestic law of the country where perpetrated. The crime sought to be tried by the ICT is pre-existing under the international law. The international law is to be found not only in treatise but also in customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by the military courts.
This law is not static, but by continual adaptation follows the needs of a changing world. The crimes under international law are found in the customary international law.  And all the charters of trial of war crimes or crimes against humanity are the expressions of the then existing customary international law. The Nuremberg trial is the first of its kind in the international level where trial of crimes under international law took place. Therefore, the maxim “nullum crimen sine lege” (no punishment of crime without a pre-existing law) has no application since the charter did not create any post facto law.
In the words of Prof. Hans Kelsen ‘the objection most frequently put forward that the law applied by the judgment of Nuremberg is an ex post facto law. There can be little doubt that the London agreement provides individual punishment for acts which, at the time they were performed were not punishable either under international law or under national law. However, this rule against retrospective legislation is not valid at all within international law, and is valid within national law only with important exception.’
Crime against humanity is an anti-thesis of civilized existence of human race committed as a matter either of the government policy or of a wide practice of atrocities tolerated or condoned by governments or a de facto authority. For the precise reason penal law for punishment of the crime of the kind may not exist in the statute book.  Non-existence of preventive or penal clauses in the statute book cannot mean that the perpetrators will go scot-free. As is earlier said the offence is ingrained in customary international law. And the offenders may be tried under the international law. Rule against retrospectivity, therefore, has no manner of application in such cases. Nuremberg trial, International Criminal Tribunal for the Yugoslavia (ICTY), and International Criminal Tribunal for Rwanda (ICTR) are illustrative of the point.
No case of double jeopardy and offending against basic structure could be made out. The Collaborators (Special Tribunal) Order is not in operation now. Question of double jeopardy may fairly be dealt with in an appropriate case should occasion arise. Furthermore, a plain reading of Articles 47 and 47A of the Constitution it becomes amply clear that no law touching upon trial of persons indicted for crimes against humanity can be challenged on ground of constitutionality. The instant writ petition is filed seemingly for delaying and/or disturbing the trial of the persons now facing trial before the ICT. The petitioner appears to be a busy body just meddling with the process of the Court. He does have no locus standi to move this petition. This is an application which does not call for issuance of rule and do reject the application summarily. . . . (2, 4, 7, 8, 9, 12 and 14)


M. Moazzam Husain, J:
 
This application under Article 102 of the Constitution is made seeking to challenge vires of section 3 of the International Crimes (Tribunals) (Amendment) Act, 2009 so far as it relates to amendment of section 3 (1) of the International Crimes (Tribunals) Act 1973 and also vires of section 19 of the Constitution (Fifteenth Amendment)Act, 2011, so far it relates to the amendment of Article 47 (3) of the Constitution.
 
By the amendment of section 3(1) of the International Crimes (Tribunals) Act 1973 (hereinafter referred to as the “ICT Act”) a new section 3(1) is substituted whereby the expression “any individual or group of individuals” is added to the original section. Which means that the tribunal’s original jurisdiction to try any member of any armed, defense or auxiliary forces is extended to ‘any individual or group of individuals’ who commits or has committed in the territory of Bangladesh any of the crimes mentioned in sub-section (2). 
 
A corresponding amendment is brought in the Article 47 (3) of the Constitution by section 19 of the Constitution (Fifteenth Amendment) Act, 2011. By the amendment after the words “auxiliary forces” occurring in sub-article (3) the words and comma “or any individual, group of individuals or organization” was added. This means that the immunity of law providing, inter alia, for prosecution of any member of any armed, defence of auxiliary forces from being challenged is extended to prosecution of “any individual, group of individuals or organization.”    
 
The challenge sought to be made herein is to the vires of the law seeking to extend the ambit of the category of persons to be brought under trial by the  International Crimes Tribunals (hereinafter referred to as the “ICT”) by addition of the expression “any individual or group of individuals” to the original expression “any member of any armed, defence or auxiliary forces”. The exception taken to the amendments because, according to the petitioner, those expressions were brought in with retrospective effect an in colorable exercise of legislative power without any guideline. The foremost concern of the petitioner is that the amendments have abridged the guarantees of fundamental rights of millions of citizens placing them at the mercy of the prosecuting agencies.
 
Mr. T.H. Khan learned Senior Counsel appearing for the petitioner submits that the impugned amendments have been made for bringing some new persons into the mischief of International Crimes (Tribunals) Act with mala fide intention. Since the amendment is effected with retrospective effect the amendment should be declared ultra vires as being inconsistent with the Constitution. Learned Counsel further submits that the impugned amendments have abridge the fundamental rights of millions of citizens of this country as the same placed them at the mercy of the prosecuting agencies and as such the same is a colorable exercise of legislative power and fraud upon the Constitution. Mr. Khan next submits by reference to the Bangladesh Collaborators (Special Tribunals) Order, 1972 (PO 8 of 1972) that the impugned amendments have been done for usurpation of the jurisdiction of the Tribunal which could be constituted under PO 8 of 1972 as PO 8 of 1972 is meant for trial of individuals or group of individuals for the same offence. Learned Counsel finally submits that the impugned amendments have also dismantled the basic structures of the Constitution as such the same should be declared ultra vires.
 
Mr. Mahbubey Alam learned Attorney General, opposes the issuance of rule on the ground that the instant petition is a frivolous one being devised by the same learned Advocate, namely Mr. AKM Fakrul Islam who has been filing similar applications one after another before this court only to jeopardize the trial of some individuals who allegedly committed crimes against humanity and war crimes during our war of liberation. Learned Attorney General referred to orders passed in Writ Petition No.6836 of 2010, Writ Petition No.5391 of 2010, Writ Petition No.7353 of 2010 and Criminal Miscellaneous Case No.35345 of 2010 and submits that in all those matters the Trial by the ICT of persons for committing crimes against humanity and war crimes was challenged on different pretext, but the respective courts rejected those applications summarily. Learned Attorney General raises objection as to the standing of the petitioner for filing the instant petition on the ground that the petitioner is an out and out busy body and just set up for moving this court on behalf of the quarters desperately trying to foil the trial of the persons indicted for crime against humanity and war crimes. Mr. Attorney General pointed out that any such application seeking to challenge the vires of law is completely barred under article 47 (3) and 47A of the Constitution.
 
I have heard the learned Counsel. It seems to me that Mr. Khan has tried to assail the amendments primarily on the rule against retrospectivity. The International Crimes (Tribunals) Act 1973 for that matter the International Crimes (Tribunals) (Amendment) Act, 2009 are meant for trial of offences recognized under the international law irrespective of violation of the domestic law. Section 3 (2) of the ICT Act has enumerated a list of crimes recognized under the international law and says, inter alia, that it shall be competent for the ICT to try “murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecution on political, racial, ethical or religious grounds, whether or not in violation of domestic law of the country where perpetrated.” The crimes sought to be tried by the ICT are pre- existing under the international law. The international law is to be found not only in treatise, but also in the customs and practices of states, which gradually obtained universal recognition, and from the general principle of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. The crimes under international law are found in the customary international law. And all the charters for trial of war crimes or crimes against humanity are the expression of the then existing customary international law. The Nuremberg trial is the first of its kind in the international level where trial of crimes under international law took place. Therefore the maxim “nullum crimen sine lege” (no punishment of crime without a pre-existing law) has no application since the charter did not create any post facto law. Professor Hans Kelsen (a jurist & legal philosopher) wrote:

The objection most frequently put forward … is that the law applied by the judgment of Nuremberg is an ex post facto law. There can be little doubt that the London Agreement provides individual punishment for acts which, at the time they were performed were not punishable, either under international or under national law… However, this rule [against retroactive legislation] is not valid at all within international law, and is valid within national law only with important exceptions.” [quoted from “ International Human Rights in Context, Law, Politics, Morals” by Henry, J, Steiner and Phillip Alston, Second Edition, Oxford University, Press, Page-124]

Secondly, crime against humanity is an antithesis of civilized existence of human race committed as a matter either of government policy or of a wide practice of atrocities tolerated or condoned by the governments or a de facto authority. For the precise reason penal law for punishment of the crime of the kind may not exist in the statute book. Non- existence of preventive or penal law in the statute book cannot mean that the perpetrators will go scot-free. As is earlier said the offence is ingrained in customary international law. And the offenders may be tried under the international law. Rule against retrospectivity, therefore, has no manner of application in such cases. Nuremberg trial, International Criminal Tribunal For the Former Yugoslavia (“ICTY”) and international Criminal Tribunal for Rwanda (“ICTR”) are illustrative of the point. I have, for the reason, no hesitation to reject the contention raised by Mr. Khan on this point.
 
The next point raised by Mr. Khan is that the amendments have abridged the fundamental rights of the millions of citizens in that the amendments are so over- broad and vague that same have thrown the citizens at the mercy of the prosecuting agencies. This seems to be a concern having had no substance. ICT is meant for trial of individual or group of individuals against whom the prosecution would be able to submit specific allegation of commission of any one or more of the crimes enumerated in sub-section (2) of section 3 of the ICT Act. Power conferred upon the prosecuting agencies is not unfettered or unguided. Millions of citizens have no reason to feel vulnerable to supposed persecution by any agency. Furthermore, introduction of the expressions “any individual or group of individuals” in the amendments is nothing new and compatible with international practices. Trial and punishment of individuals for committing war crimes and crime against humanity are recognized in international law. Individual cannot escape his liability for committing war crimes or crime against humanity. In all the international tribunals including the Nuremberg, ICTY and ICTR one thing was done in common that is the trial of individuals for war crimes and crimes against humanity. No question was ever raised disputing ‘individual liability’ in war crimes or crime against humanity.
 
As for the usurpation of jurisdiction of special tribunals set up under Collaborators (Special Tribunals) Order, 1972 raised by Mr. Khan I feel far from being convinced. There is no scope for the persons put to trial to be victim of double jeopardy precisely for the reason that the Collaborators (Special Tribunals) Order in not in operation at the moment nor there any tribunal under the Order now functioning. Should occasion arise question of double jeopardy for that matter usurpation may be raised and settled. On the basic structure question, Mr. Khan has not elaborated how the amendments have dismantled the basic structure of the Constitution. It is also difficult to conceive how the widening of the sweep of the law from members of armed, defense or auxiliary forces to any ‘individual or group of individuals’ can offend against basic structure of the Constitution.
 
Now turning to the bar created by the Constitution, it is seen that our Constitution under article 47(3) has made the law for detention, prosecution or punishment of any person who is a prisoner of war, for genocide, crime against humanity or war crimes and other crimes under international law immune from attack on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provision of the Constitution. With a view to ensuring smooth and unhindered trial of the offenders the drafters of the Constitution have taken further care by inserting new article 47A in the Constitution. Article 47A has sought to shut out the persons to whom law specified in clause (3) applies from moving the Supreme Court for any of the remedies under the Constitution.
 
Article 47A of the Constitution may aptly be quoted:
 
47A. (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 the Constitution.
 
A plain reading of article 47 and 47A make it amply clear that no law touching upon trial of the persons indicted for crime against humanity or war crimes can be challenged on ground of constitutionality.  And any person to whom any such law applies cannot take recourse to article 31, clauses (1) and (3) of article 35 and article 34 of the Constitution. The writ petition itself is, therefore no sustainable in law.
 
Back to the question of standing so seriously argued by the learned Attorney General it appears that one “Advocate Murshedur Rahman Chowdhury” is the petitioner of the writ petition. He has signed the affidavit as “Advocate Murshedur Rahman Chowdhury”. It is not clear he is an advocate by profession or advocate by name. What is found mentioned is that he is 41 years of age and hails from a village of Chittagong district. Over the decades question of standing has been dealt with by the superior courts of the sub-continent and even by the House of Lords in England. True it is that courts of different jurisdictions have taken view in favour of liberalization of standing. But without exception all the courts have expressed their words of caution about meddling with the process of court by meddlesome interloper or busy body. Mr. Khan has referred to the famously known Beru Bari case, 26 DLR (AD) 44, where an Advocate brought the writ petition for vindicating his right to move freely throughout the territory of Bangladesh, to reside and settle in any place therein as well as his right to franchise. His locus standi  to move the Supreme Court was allowed. The Beru Bari case is far distinguishable with the present case. In the Beru Bari case the Advocate was a person personally aggrieved for violation of his fundamental rights. Here in this case  a citizen of Bangladesh with the status of millions of other citizens have come up with this writ petition alleging that amendment brought into the ICT Act and in the Constitution by impugned Amendment Acts have thrown him with millions of others at the mercy of the prosecuting agencies. Thus their fundamental rights are infringed. He has therefore, challenged the vires of law.
 
The impugned amendments are concerned about trial of the persons who commits or have committed, amongst others, crimes against humanity as described in section 3 (2) of the ICT Act, 1973. The petitioner is a person of 41 years of age. He does have no chance of being implicated for any such crime committed during liberation war. If upon investigation any such offence committed after the law came into force is found to have been prima facie established against him or any other citizen like him appropriate legal consequence will follow. Prosecution against commission of specific offences has nothing to do with violation of fundamental rights.
 
Meanwhile a number of petitions were filed in different jurisdictions of the High Court Division on different pretext. The present writ petition is the last in the sequel filed seemingly for delaying and/or disturbing the trial of the persons now facing trial before the ICT. The petitioner appears to be a busy body just meddling with the process of the court. He does have no locus standi to move this petition.
 
For all the reasons stated above I agree with my learned brother Sheikh Hassan Arif, J, that this is an application which does not call for issuance of rule and do reject the application summarily.
 
Ed.