Bangabandhu Sheikh Mujibur Rahman was a charismatic leader and the architect of our nation. He was instrumental in the language movement of 1952, the democratic movement of 1962, the six-point program of 1966, the mass movement of 1969, the elections of 1970, and finally the independence movement of 1971. Bangabandhu represented the aspirations and hopes of millions of Bengalis who wanted a just society free of any oppression and inequality.
Bangladesh gained independence from Pakistan through his firm and far-sighted leadership. Bangabandhu has remained an integral part of our history because of his immense contribution to the creation of Bangladesh. After the independence, Bangabandhu served as the president of Bangladesh. Bangabandhu guided the country during its formative years. He laid the foundation for the development of “Sonar Bangla” and his dynamic leadership was instrumental in shaping the newly liberated nation.
YOU CAN ALSO READ: JOY IDENTIFIES MUSHTAQ AND ZIA AS MASTERMINDS BEHIND AUGUST 15 TRAGEDY
In 1973, the World Peace Council awarded the “Julio Cu- rie” Peace Prize to Bangabandhu Sheikh Mujibur Rahman for his contribution to world peace. Unfortunately, just four years after the independence of Bangladesh, on August 15, 1975, the architect of the nation Bangabandhu was assassinated, along with most of his family members at his residence. Following the assassination, an undemocratic government took control of Bangladesh. The assassination of Bangabandhu was a profound loss that halted democracy and development.
In 1977, when General Ziaur Rahman, the founder of the BNP, seized power through a military coup, 12 army officers involved in the assassination of Bangabandhu were awarded jobs in diplomatic missions abroad.
Ziaur Rahman also promulgated the Indemnity Ordinance to protect the killers of Bangabandhu. In 1996 when the Awami League returned to power, the ordinance was abrogated. This paved the way to bring the killers of Bangabandhu to justice. In 1996, the final investigation report for the assassination of Bangabandhu Sheikh Mujibur Rahman and his family was filed. In 2009, the Appellate Division of the Supreme Court upheld the High Court verdict confirming the death sentence of Noor Chowdhury along with 11 others for the assassination of Bangabandhu and his family members.
UPPER COURT ACCUSATION TO BANGABANDHU KILLERS
The Appellate Court observed, “The accused persons brutally killed a leader who is none but the father of the nation. They even did not spare the President’s son, a child who was below 10 years old. They killed him in a brutal manner, leaving the nation shocked and dumbfounded.” Indeed, Bangabandhu was an exceptional politician in our history who is not comparable to anybody nor he can be replaced by anybody. The Appellate Court also observed, “There was no explanation why they killed the three women. They committed a crime against humanity by killing a child and three innocent, unarmed women. They eliminated almost the entire family found in the house.
There is no explanation on the side of the accused as to why they killed the innocent.” The Brutal murder of 18 unarmed innocent men, pregnant women, and children is a crime against humanity. Six killers of Bangabandhu were executed in two separate phases while the five other death penalty recipients are still absconding. The Supreme Court convicted Noor Chowdhury as the lone shooter who killed Bangabandhu.
ABSCONDING NOOR CHOWDHURY’S STATUS IN CANADA
He has been absconding since the day the case was filed and reportedly, Noor Chowdhury has been staying in Canada for the last 27 years. Initially, the Immigration Court of Canada rejected Chowdhury’s application for political asylum and wanted to send him back, but the then-BNP government (2006) did not take the initiative to bring back the fugitive. In 2018, Prime Minister Sheikh Hasina made a request for the deportation of Chowdhury when she had a meeting with Canadian Prime Minister Justine Trudeau in Quebec. In reply, Trudeau cited Canada’s legal system regarding the deportation of a person convicted of the death penalty.
Noor Chowdhury has been staying in Canada for the last 27 years.
Law Minister Anisul Huq also requested the High Commissioner of Canada in Dhaka Lilly Nicholls in November 2022, to extradite Chowdhury. The High Commissioner pointed out that under Canadian law deporting a person sentenced to death would not be possible. Chowdhury resides in Canada under the protection provided by the Pre-Removal Risk Assessment (PRRA), which is regulated by sections 112 and 113 of the Immigration and Refugee Protection Act.
In his PRRA appeal, Chowdhury mentioned that he would be sentenced to death if he were deported. The death sentence was abolished in Canada in 1976. The Canadian Charter for Rights and Freedom (“charter”) ensures the right to life, liberty, and protection from cruel and unusual punishment. In the given scenario, we can consider a few Canadian cases to understand if the extradition of Chowdhury is at all possible.
EXAMINING CANADIAN EXTRADITION CASE
In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 Kindler was found guilty of murder, conspiracy to commit murder, and kidnapping in the U.S.A, and the jury recommended a death sentence. Before Kindler was sentenced, he escaped from prison and fled to Canada where he was arrested. The Minister of Justice ordered Kindler’s extradition pursuant to section 25 of the Canadian Extradition Act without seeking assurances from the U.S.A that the death penalty would not be imposed or, if imposed, not carried out under Art. 6 of the Extradition Treaty between the U.S.A. and Canada. Section 25 of the Extradition Act gives a broad Ministerial discretion whether to surrender a fugitive and if so on what terms.
While Article 6 of the Treaty provides that, a country, which has received an extradition request from another nation, may require assurances against imposition of the death penalty before extradition. Subsequently, when the appeal was filed against this order, the Supreme Court of Canada ob- served that Section 25 of the Extradition Act does not infringe the rights provided under the Charter.
The Court noted that Canada is not directly responsible for the ultimate outcome of the procedure, thus the Minister’s decision to order an unconditioned extradition cannot be viewed as a deprivation of the fugitive’s constitutional guarantee against “cruel and unusual punishment.” Court ruled that in this case deportation of the appellant was not violative of the principles of fundamental justice. The same result was reached in Ng v Canada (1989) 97 S.C.R. 858 where the Minister of Justice ordered Ng’s unconditional extradition to the U.S.A. On appeal, the Supreme Court discussed the implications of the decision of the
“A review of the factors for and against unconditional extradition, therefore, leads to the conclusion that assurances are constitutionally required in all but exceptional cases.”
Minister about the unconditioned surrender of Ng in conjunction with the similar appeal of Kindler. The Court declared extradition without assurances of the death penalty of non-Canadian Ng valid. In both cases, the Supreme Court also noted that while Canada itself had abolished the death penalty, Canada should respect that most other countries had not. Kindler and Ng were two of many individuals extradited without conditions.
The decision of the Minister of Justice to extradite non-Canadian fugitives without assurances that the death penalty would not be imposed is not out of step with the international group. For example, the U.K. extradited fugitives charged with murder to the U.S.A. twice, without de- manding assurance. In Kirkwood v. United Kingdom, application No. 10479/83, the European Commission of Human Rights (ECHR) approved the extradition in view of the constitutional guarantees and reviews of death row conditions in California. In this case, the ECHR rejected the argument that the unconditional extradition infringed Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that no one shall be subjected to torture, inhuman, degrading treatment, or punishment.
In Burns and Rafay v Minister of Justice (2001)1 S.C.R. 283, Rafay and Burns were Canadian citizens and suspected murderers in the U.S.A., who fled to Canada. The Minister of Justice signed an unconditional extradition order for trial in the U.S.A. pursuant to the U.S.A and Canada’s extradition treaty. The minister took the position that assurances were not to be sought routinely in every case in which the death penalty was applicable. Rafay and Burns argued that the minister was required to seek assurances that the death penalty would not be imposed if extradited. When the case came before the Supreme Court, Burns and Rafay pointed out that their unconditional extradition to face the death penalty would shock the conscience of the Canadians because of their age (18 years) and because, unlike Kindler or Ng, they were Canadian.
The Court noted, “A review of the factors for and against unconditional extradition, therefore, leads to the conclusion that assurances are constitutionally required in all but exceptional cases”. However, in holding, that unconditional extradition is generally unconstitutional; the Court did not define “exceptional circumstances”, nor discuss the criteria necessary for proving exceptional circumstances. The rationale of the Court for this decision was partly based on the international trend toward the abolition of the death sentence and the practical and philosophical difficulties associated with the penalty, not the specific circumstances of the case at hand.
WHAT COULD BE EXTRADITION PROSSES FOR BANGABANDHU KILLER
Bangladesh can contend that the crime committed by Chowdhury falls under the category of crime against humanity and gross violation of human rights.
Extradition is a common practice among civilized democratic states to ensure justice and achieve the objective of fighting international and transnational crimes. In 1877, Canada passed the Extradition Act (amended in 1999) which authorizes the surrender of a fugitive to any country with which Canada has an extradition treaty. Bangla- desh does not have any such treaty with Canada. Therefore, in the given situation Bangladesh can sign a person-specific extradition agreement excluding the assurance clause. In this regard, Bangladesh can refer to the Burns case to justify the unconditional extradition of Chowdhury.
In Burns’s case, the Canadian Supreme Court did not elaborate on the criteria necessary for a showing of exceptional circumstances to legitimize unconditional extradition. It can be reasonably argued that the death penalty for crimes like genocide, gross violation of Human rights, terrorism, and crimes against humanity shall fall under the category of exceptional circumstance.
Bangladesh can be a category of exceptional circumstances. Bangladesh can contend that the crime committed by Chowdhury falls under the category of crime against humanity and gross violation of human rights. Thus, this particular issue can be treated as an “exceptional circumstance/case” to initiate unconditional extradition. Both the Kindler and Ng cases can also be cited, since in these cases the Supreme Court of Canada implicitly made the assurance clause need- less for two non-Canadian fugitives. Kirkwood case can be quoted too, as in this case, the ECHR approved extradition without assurance. Bangladesh has its own jurisprudence and it is obliged to follow the mandate of its Constitution.
The Constitution protects human dignity and states that no one should be deprived of life without due process of law. Like many other nations, Bangladesh permits the death penalty strictly following due legal procedures. Mass people of Bangladesh demand justice for the brutal killing of the Father of the Nation and his family, which constitutes a crime against humanity. Therefore, by extraditing Chowdhury unconditionally Canada could play a key role in fighting crimes against humanity and ensuring justice for Bangabandhu and his family. On the contrary, if Canada remains rigid about the extradition of a confessed murderer, it is not unlikely that offenders like Chowdhury would flee to Canada only to escape the death penalty.
