opinion of Michael J Beloff QC on War Crimes Tribunal in Bangladesh

Michael J Beloff QC was specifically instructed to advise with regard to the constitutionality of Articles 47(3) and 47A of the Constitution as introduced by Constitution (First Amendment) Act, 1973. Under Article 47(3) of the Constitution, the provisions of the International Crimes (Tribunals)
Act, 1973 (“the 1973 Act”) cannot be challenged as being contrary to the Constitution. Moreover, under Article 47A persons accused under the 1973 Act do not have the right to move the Supreme Court to seek enforcement of their fundamental rights. It was the opinion of the Hon. Michael J Beloff QC that Judicial Review was a basic structure of the Constitution of Bangladesh. Articles 47(3) and 47A, restricted the constitution powers of the
High Court Division to judicially review administrative actions of the Government and legislations passed by the legislature. As such he concluded in his opinion “that Article 47(3) and 47A are unconstitutional
in so far as they abrogate judicial review in the circumstances therein defined”.
The Hon. Michael J Beloff QC was also of the opinion that section 6 of the 1973 Act offends against the requirement that a Tribunal be independent. The Tribunal members do not enjoy security of tenure guaranteed to mainstream members of the judiciary (Article 96 of the Constitution). To that extent it falls short of appropriate standards. The lack of security of tenure could predispose
(or be thought to predispose) the Tribunal to be partial to the Government prosecutor. Moreover the inability to challenge the constitution of the Tribunal (Section 6(8) of the 1973 Act) albeit shared by the prosecution as well as the defence could still result in a Tribunal with the actuality
or appearance of bias, (contrast e.g. The Rome Statute permitting such a challenge: Article 41.1 and 2(b). The 1973 Act contains no articulated presumption of innocence. The absence of an express provision
puts it out of alignment with the Universal declaration of Human Rights and the International Covenant of Civil and Political Rights.
Finally, there is no provision for bail in the 1973 Act; Section 11(5) deals only with powers of detention of an accused. However, freedom pending trial is the presumptive position. Provisions as to bail are required expressly by Article 9.3 of the International Covenant of Civil and Political
Rights and by Article 9 of the Universal Declaration of Human Rights.