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Army Act sought to try 19 offences

Star obtains a copy of BDR draft of references; it spells out limitations in BDR, civil laws for mutiny trial; wants president to refer the issue to SC for opinion

Hasan Jahid Tusher
Bangladesh Rifles has formally suggested 1 applying the Army Act 1952 to try the BDR
personnel and Chilians who committed 19 offences in and outside the Pilkhana headquarters during February 25-26 bloody mutiny.
BDR Director General Md Mainul Islam sent the draft of a reference proposal to Commerce Minister Faruk Khan on August 4. in which he has strongly justified their position on trying the
offenders under the army act.
Faruk Khan is the head of the high-powered government committee for coordinating activities of the Prime Minister's Office, the home and defence ministries following the BDR mutiny.
In the draft, the BDR has suggested president's intervention to overcome some limitations in trying the mutineers under the army act as there appear to be a lot of inadequacy and limitations in the BDR's and the coun try ’ s laws to try the offenders of February 25-26 mutiny that killed 73 people
including57 army officials.
The Daily Star has obtained a copy of the draft that points out 15 reasons to try the mutineers under the army act.
"It is felt to be expedient and appropriate to apply the Army Act, 1952 to the BDR force for the fair, effective and speedy trial of the offenders involved in BDR mutiny by ensuring all the administrative and legal requirements," the draft says.
The 15-page reference proposal speculates that applying the army act might
SEE PAGE 15 COL 4 FROM PAGE 1
raise questions in view of article 35(1) of the constitution.
It suggests that President Z.illur Rahman seek opinion from the Supreme Court on two issues: if the notification to be published under section 5 of the army act can be given retrospective effect for applying all or any provision of the act to BDR, and if the restriction imposed under article 35(1) of the constitution applies in case of disciplined forces in view of article 45.
According to article 35(1), no person shall be convicted to any offence except for violating a law in force at the time of committing the offence, nor be subjected to a penalty greater than or different from what the law provides.
Article 45 says the laws on fundamental rights will not apply to any provision of a disciplinary law relating to members of a disciplined force.
Sources said the president might seek the Supreme Court's opinion on Sunday. LIMITATIONS OF BDR AND CIVIL LAWS
Serious offences like murder, attempt to murder, looting, arson and others cannot be tried under the BDR law because those offences are not mentioned in its law. Departmentally promoted officers like assistant directors, deputy assistant directors and civilian employees of BDR cannot be tried under the BDR law because there is no provision for trying these persons under the BDR law.
There are two types of courts under BDR laws--Special Court and Special Summary Court. As per article 2(1) of the BDR Order, 1972, the BDR DG has to preside over the special court in person to try the offences. The draft says considering the huge number of offenders, it will be practically impossible for him to hold all the trials besides performing all day-to-day operational and administrative functions including reorganising the force.
The highest punishment for the offence of mutiny under the BDR Order 1972 is seven years rigorous imprisonment, which is very much inadequate in view of the gravity of the February 25-26 mutiny, the draft says.
It adds that the Penal Code and other penal laws have not dealt with the offence of mutiny, desertion, absent without leave and other offences of military nature. Procedurally, trial under the Criminal Procedure Code takes a longer time, which will hamper the operational effectiveness of BDR if it is held under the Penal Code.
It will be impossible for the criminal court to hold the trial of such a large number of accused, the draft says.
A total of 1,779 persons have been arrested so far in Dhaka and 1,721 others outside Dhaka in connection with the BDR carnage.
If the number of accused increases or further investigation is required, the BDR will face serious challenges to protect the border, the reference says, adding that therefore the trial under the Criminal Procedure Code may put national security at risk.
So. through notification the government may apply all or any provision of the army act to any force in Bangladesh, says the reference proposal. SUGGESTIONS FAVOURING ARMY ACT
The draft reference says all offenders including departmental officers and civilians can be tried under the army act. The authorities concerned might form several courts to hold trial of all offenders at a time.
No amendment to the army act is required for holding trial in the case. The accused will have the right to self-defence through appointment of a counsel at his choice and also the right to object to any member of the court on reasonable grounds.
"The court martial being an open court the press media and other persons may be allowed to witness the trial. The sentence of the court is subject to the confirmation of the confirming authority; and the superior authority and the government may always have the power to remit or commutesentence.
"No in-absentia trial can be held; therefore the accused will always have the opportunity to defend himself. Appropriate and adequate punishments can be awarded under this act," the draft says.
According to the provision of sections 94 and 95 of the army act and section 549 of the Criminal Procedure Code, all
cases filed with the criminal court can be transferred under the concurrent jurisdiction of die court martial for trial.
"Any person aggrieved by the finding or sentence of the court martial may submit a petition to the appropriate authority or to the government for redress. If once trial commences by a court martial. it continues without adjournment: therefore, the trial by a court martial is speedy by nature and it can dispose of the offences very quickly.” it says.
The application of the rules of evidence in proceedings before court martial is the same as those of criminal court. The proceedings of a court martial are subject to review by Judge Advocate General's Department at headquarters; and any finding or sentence, not supported by evidence, may be sent back to the court for revision by the appropriate authority.
THE 19 OFFENCES
BDR personnel along with some civilians at the Pilkhana headquarters and outside Dhaka committed mutiny, murders and attempt to murder and also caused injuries and grievous injuries by dangerous weapons or means.
They used force to deter public servants from the discharge of duty, confined the officers' family members and took them as hostages, committed desertion, remained absent without leave from units, broke open arms and ammunition store and used firearms without authority, it adds.
The perpetrators resorted to mischief by fire or explosive substances, theft, extortion, robbery, criminal intimidation, conspiracy, abetment of mutiny, murder and other offences and also caused explosion to endanger life or property and disappearance of evidence of murders by removing bodies, says the draft.
They distributed leaflets with false information, used the media for spreading propaganda to draw sympathy of people, put up blockades on road, terrorised people by indiscriminate fire, caused loss and destruction tif government properties (arms and ammunition), used force against superior officers; and committed disobedience to lawful command.
The BDR needs to be reorganised for restoration and maintaining discipline in the border security force.
It further says exemplary and appropriate punishments to the offenders through a fair and speedy trial will help restore order and discipline in BDR.