Publishes by The Daily Star on April 20, 2013 (Link Over)
This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
We all know that recently the Government made changes to the rule for filing appeal against the verdict of the international crimes tribunal that is trying the alleged war criminals. I am interested to know if the appeal against verdict will be made on law or on fact?
I would like to thank you very much for your queries. From your queries it appears that you want know the grounds (i.e. legal or factual) on which appeals against the Judgment of the International Crimes Tribunal (ICT) are based upon.
ICT was constituted in the manner provided under the International Crimes (Tribunals) Act 1973 (hereinafter referred as “Act”). The Act is a comprehensive set of provisions designed for not only the constitution of the ICT but also for its jurisdiction, power and also provides details of the investigation, trial procedure, Judgment and appeal. The Act in Section 21 provides for appeal by the Government and the convict as of right to the Appellate Division (hereinafter referred as “AD”) of the Supreme Court of Bangladesh. The Government has made an amendment to the provision dealing with appeal by way of the International Crimes (Tribunals) (Amendment) Act 2013 thereby enabling the Government or complainant or informant (as the case may be) to prefer an appeal to the AD against an order of acquittal or an order of sentence. Please note that the convict is able to prefer an appeal against conviction and sentence as of right to the AD under the provision prior to the amendment to the Act made in 2013.
The Constitution of the People’s Republic of Bangladesh (hereinafter referred as “Constitution”) in Article 103 confers jurisdiction on the AD to hear and determine appeals as of right from judgments, decrees, orders or sentences involving confirmation of death sentence or sentences amounting to death or life imprisonment of the High Court Division or of any such other court or tribunal as may be declared by the Parliament by law to come under Article 103.
The Criminal Procedure Code 1898 (hereinafter referred as “CRPC”) in Section 418 has provided that criminal appeals (whether made by the Government or accused) may lie on a matter of fact as well as matter of law. The Act on the other hand has not provided anything specifically as to the grounds (i.e. factual or legal) upon which an appeal to the AD shall be made against an order (i.e. conviction, acquittal, and sentence) of the ICT. Though the Act in Section 23, has specifically proscribed the application of the CRPC, in its proceedings, the instant provision of the CRPC may be considered as a general principle of criminal appeal.
Therefore, it may be contended that in the absence of any specific provisions, appeals made to the AD by the Government or the convict against order/judgment of the ICT may be based on factual and/or legal grounds which is also consistent with the usual norm of criminal appeal in Bangladesh.
I hope you will have answers to your queries from the aforesaid opinion.
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