Wednesday, October 29, 2014

Nizami's conviction - the 'moral justice' or 'fair trial' prisms

Motiur Rahman Nizami was today sentenced to death for crimes he was alleged to have committed during the country's 1971 War of Independence.

He was charged with 16 offences, convicted of eight, and sentenced to death in relation to four.

Putting the issue of the death penalty aside for the purposes of this discussion, I would suggest that one's response to Nizami's conviction depends upon the prism through which one considers the trial.

If it is through the overall prism of moral justice, the conviction is almost certainly fair.

Motiur Rahman Nizami was the head of the Jamaat-e-Islami student wing during 1971, whose members directly collaborated with the Pakistan military, some of whom are notoriously assumed to have been involved in atrocities during the war. It is difficult to imagine that Nizami, in siding with the military, and due to the position that he held, was not involved in crimes against civilians during the war.

However, if one looked at the trial through the prism of fair trial standards, one would have a different perspective, since there are significant and well founded concerns about the process of the trial. Apart from the general overall weaknesses in the legislation (discussed elsewhere), in relation to Nizami's trial, three immediate issues come to mind:
- Charge no 16, one of the offences for which Nizami received the death sentence, was not part of the prosecution's initial charge framing application, but appears to have been added (as seen from the e-mails leaked during the 'skype' scandal) at the request of an outsider to the tribunal, Ziauddin Ahmed, a legal academic who whilst advising the judges was also in touch with the prosecution.

- Nizami's defence lawyers were only allowed to call four witnesses in defence of 16 charges, whilst the prosecution were allowed over 20.

- At least one prosecution witness, Shamsul Huq Nannu, claimed in a recorded interview that he was briefed and coerced to give evidence against Nizami. (He subsequently denied that he ever gave the videoed interview, but independent tests done on the voice recordings commissioned by the defence suggested that it was the same person)
For those politically sympathetic to the accused, these fair trial concerns are a very big deal.

However, those concerned with the overall context of justice in 1971 would see these criticisms as minor or irrelevant procedural matters, or would contest their accuracy.

Whilst, in the end of course it is only through a fair trial process that guilt can properly be apportioned, the prism of moral justice cannot simply be put to one side. It is therefore difficult to feel too much sympathy for Nizami.


Saturday, October 11, 2014

Summary of legal argument on blog contempt charges

In February this year, a lawyer, who previously had no involvement with the International Crimes Tribunal filed an application with the court claiming that three articles in this blog - one written over two years earlier, on the number of deaths in the 1971 war and two others (here and here) written over a year earlier commenting on the judgment of the trial of Abul Kalam Azad - were in contempt of the International Crimes Tribunal.

An order was passed by the Tribunal seeking 'an explanation' about the criticism. In response, a written explanation was filed with the court, and on 31 March, an oral hearing took place. Following this hearing, on 17 April, the court passed an order which issuing contempt proceedings. In response to this, an 'affidavit in opposition' was filed setting out why these proceedings should not go any further, and no contempt had taken place. 

The judgement is now due on 1 December 2014 (having been adjourned from Monday, 13 October, 2014 as judges said that they had not completed writing their judgement)

Below is the skeleton argument that was filed in court, and formed the basis of arguments made on the last date of hearing as to why the articles in the blog were not in contempt of court.

The arguments can be divided into two parts. Those which argue that the proceedings themselves are unlawful (due to the delay in initiating proceedings, because they were initiated by a third party, lack of a right of appeal) and those which argue that, in any case, the articles fall well within the permissible limits of fair criticism.

To read more detail, you can see the full written affidavit, and you can also see the case law which was cited in court in support of the arguments.

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Skeleton Argument
1. Lack of Maintainability 
• 1973 Act/rules not permit third party applications on any Tribunal matter, in particular not permit proceeding with private prosecution, and there is no history of either tribunal allowing third party to file, maintain, argue any application before it. Current application unprecedented.

Blog contempt case, response to court

Below is the 'affidavit in opposition' which was filed in court and which sets out  the main arguments why the contempt of court charges involving three articles in this blog are not sustainable. You can also download the whole document here.

To understand the background to this case, see here.


The arguments in the affidavit, which were supported in oral arguments, can be summarised as follows
1. That the proceedings are not 'maintainable' (i.e were procedurally unlawful), as they were not brought by a party to the tribunal (i.e an accused, a prosecutor, an investigator, or a judge) but by a person, 'a third party', who had no previous role in the tribunal. In no other proceedings before the tribunal has a third party been allowed to file an application, yet alone to initiate and prosecute proceedings - which is the situation here, and there is no procedure to allow it. Such third party proceedings before this tribunal are totally unprecedented. (See para 8 to 14
2. That the proceedings are an 'abuse of process' due to the unprecedented length of time between the publication of the articles and the date at which proceedings were initiated - a period of over two years in relation to one of the articles, and over one year in relation to the other two. In Bangladesh and in other common law countries, the practice is that proceedings for alleged contempt of court through 'scandalization' are initiated within days or weeks of the publication of the alleged contemptuous article - not years. (See paras 15 to 22)

Saturday, September 20, 2014

Sayedee - the blame game

Attorney General
There is much to say about the decision of the appellate division to commute two death sentences against Delwar Hossain Sayedee to terms of imprisonment – and over the coming days, this blog will attempt to say them

I was however struck by the front page article in yesterday’s Dhaka Tribune, titled ‘Blame game after Sayedee Verdict’ focused on the claimed inadequacies of the investigators and prosecutors.

Attorney General, Mahbubey Alam is quoted in the article as saying on a talk show, ‘If you knew what sort of prosecutors were appointed it would give you the creeps.’ Alam also referred to one lawyer who was appointed as a prosecutor even though he or she did not have any experience in dealing with criminal cases.

Claims about the inadequacies of investigators and prosecutors are of course not new (and it is certainly intriguing that Alam, as Attorney General, has apparently done nothing to rectify the situation), but it is very odd that he would seek to make such comments in the context of the appellate division upholding five charges against Sayedee.


Tuesday, September 16, 2014

Sayedee appeal judgment - rolling blog

This is a rolling post looking at the decision (due to be given on Wednesday morning, tomorrow) of Bangladesh's appellate division concerning the appeal by Delwar Hossain Sayedee against the judgement of the country's International Crimes Tribunal, given in February 2013, which sentenced him to death for offences involving crimes against humanity committed during the 1971 Independence War of Bangladesh.

You will need to refresh your page to see new posts

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WEDNESDAY 17 SEPTEMBER

11.30 am: Sayedee' death sentence in two cases commuted, and reduced to imprisonment
The appellate division ruled the following
Charge 6   -  acquitted
Charge 7   -  sentenced to ten years imprisonment (previously no sentence)
Charge 8   -  one part acquitted (by majority), death sentence reduced to 12 years imprisonment
Charge 10 -  death sentence, reduced to life imprisonment
Charge 11 -  acquitted
Charge 14 -  acquitted
Charge 16 -  imprisonment for life (previously no sentence)
Charge 19 -  imprisonment for life (previously no sentence)

In summary:
- In relation the two charges where he had a death sentence, one was commuted to a life sentence and the other was commuted to 12 years imprisonment
- in three other charges, where he had received no sentence, he was acquitted
- in three other charges, where he had received no sentence he received in relation to two of them a life sentence, and in the other a sentence of ten years imprisonment

Tuesday, July 8, 2014

Adjournment

We were all set for the hearing at which my lawyer would put forward to the Tribunal our arguments in response to the allegation that I had committed contempt of court. I had delayed my trip to London by nearly two weeks just so that I would be present for this date.

As the judges entered the court room, one of the applicant's lawyers asked for an adjournment as the main lawyer on their side, Mizan Sayeed was ill. After some discussion, in which the tribunal showed its displeasure at seeking an adjournment, the court adjourned the matter to 21 August.

Sunday, July 6, 2014

Hearing on contempt proceedings

On Tuesday 8 July, a hearing at the International Crimes Tribunal will take place, concerning its previous order requiring me to 'show cause' why I should not be punished for contempt of court.

Last month, our written response to that 'show cause' notice was filed with the court, and Tuesday is the date set for the oral hearing. This written response, along with an account of the oral hearing, will be published on this blog later on Tuesday.

The background to this is as follows:
On 19 February 2014, a lawyer called Abul Kalam Azad, who is not a party to the tribunal and has had no previous involvement with it, filed an application with the tribunal claiming that three articles - one published two and a half years earlier and two published one year earlier - were in contempt to court. 
- A few days latter, the Tribunal in response passed an order seeking an explanation for the 'criticisms' contained in the articles. 
An explanation was filed with the tribunal and an oral hearing took place
- On 17 April, the tribunal passed an order stating that it was not satisfied with the explanation, and that it was of the 'view that there have been prima facie elements of contempt in the comments/criticism dated 11.11.2011 and 28.01.2013 made by the opposite party which warrants to draw contempt proceedings against him under section 11(4) of the ICT Act, 1973. Hence the contemnor is directed to show cause within 15 (fifteen) days from date as to why he shall not be punished for making derogatory comments towards the order ...' 
- The press statement issued subsequent to this order can be seen here 
- In May, a response to the show cause order was filed with the court (to be published on Tuesday)
- 8 July: oral hearing to take place at the tribunal