The prosecution “agency” belonging to Bangladesh’s International Crimes Tribunal appears to be rather confused about the application of new amendments to the International Crimes (Tribunal) Act 1973 relating to whether army officers, are automatically discharged from the army when they are charged with an offence under the Act. 15 army officers have recently been charged, and are now in detention in a sub-jail within the army cantonment.

On Monday, following a press conference, newspapers reported that prosecutor Gazi Monawar Hossain Tamim had told journalists that the 15 army officers formally charged in three cases before the ICT “remain in service until the Army Headquarters applies the law.”

On Monday, the ICT prosecution agency issued a correction in a press release which stated, that Tamim’s statement was “misquoted and distorted”, creating the wrong impression that the law’s application depends on the army authorities.

The ICT prosecutors statement went onto say that under Section 20C of the amended International Crimes (Tribunal) Act, 1973, once a formal charge is submitted, the accused is “automatically disqualified from holding any public office or service of the republic, unless discharged or acquitted by the tribunal”.

However, there is a strong argument that the amendment was specifically drafted to allow members of the armed forces – unlike those in other political positions – to remain in their posts, when charged with an ICT offence. Alternatively, It could of course also be a terrible drafting mistake (which does sometime happen).

The relevant amendment says the following: that where a formal charge is submitted against a person, that person “shall be disqualified” from

“(a) being elected, or being, a member of parliament; or

(b) being elected or being appointed, or being, a member, commissioner, chairman, mayor or administrator as the case may be, of any Local Government Bodies; or

(c) being appointed to any service of the republic

(d) holding any other public office”

Which of these subparagraphs applies to members of the armed forces? It is clearly not (a) or (b) which relate to national and local politicians. It is also not (d) as Bangladesh law does not deem members of the armed forces to be “in public office”.

It is subparagraph (c) which applies to members of the armed forces since by articles 133–135 of the Bangladesh constitution, members of the armed forces are part of the “service of the Republic.”

Now, while subparagraphs (a) and (b) explicitly state that Members of Parliament or local officials are disqualified from “being” in office once charged, paragraph (c) is more narrowly drafted.

Sub-paragraph (c) does not disqualify someone already serving in the armed forces from “being” in service — it only disqualifies them from being “appointed” to such a service. In other words, a charged army officer may continue to serve in the army but cannot receive a new appointment or promotion. (Of course, it also means that a person not currently in the armed forces, once charged, cannot be appointed to it.)

Therefore, unless the army independently decides to suspend or remove the 15 charged officers, they remain in service — which, arguably, was the point that Prosecutor Tamim was originally trying to make.

Unless, of course, the law is amended again.