The Supreme Court of Bangladesh has sent its decision to the President on the reference sent to it under Article 106 of the Constitution. The Reference sought the apex court’s opinion whether BDR personnel could be tried under the Army Act, 1952. 10 amici curie were appointed. There were divergence of opinion and the court decided that it was not possible for the trial to take place under the Army Act. In here, I had argued that all options were open to the Government. But with this decision, it is almost now certain that the Army Act route is unavailable.
I must agree with Mr. Rokanuddin Mahmud’s point on the maintainability of this reference. In my opinion, the questions stated in the reference and in fact the whole subject matter of it is not appropriate for reference to the Supreme Court under Article 106 of the Constitution. This is a highly contentious issue and the questions sent ought to be answered in appeal not in reference. Furthermore, it is inevitable that these questions would come up in appeal and then there would be a conflict of decisions.
Even if the Supreme Court had taken the decision that the Army Act may apply, it wouldn’t have been prudent to try such serious offences in Court Martial. Courts Martial are not proper forums for trying such grave offence like murder. Serious offences are always tried in Civil Courts since the accused person’s life and liberty are at stake. On the other hand it is also true that the carnage at the BDR on 22nd February is an extra ordinary event and there should be a speedy trial. After the decision of the Supreme Court, the Government now may set up special tribunals under the general criminal law which will exclusively try the BDR accused. In this case the trial would be transparent as well as expeditious