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.

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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

8.30 am: Off to court
Will update as soon as the order is read out in court

8.00 am: Right of review - a matter of delay
Since it is extremely unlikely that the same judges of the appellate division would agree to overturn a decision on the basis of an application to review its decision (see below), the issue of the right to review really has little impact on the proceedings other than providing Sayedee some additional time before he is hanged. This is assuming of course that the appellate division upholds the tribunal's sentence.

7.45 am: Current Law minister supported right of accused's 'right of review' at time of Molla
Interestingly, at the time of the Molla review application, the current law minister, Anisul Huq, was not part of the government. He was quoted at the time as stating:  “Although there is no provision for filing a review petition in the ICT Act, a convicted person’s fundamental and Constitutional rights allow him to file a review petition with the apex court.”

7.40 am: Do the defence have a 'right of review'?
Assuming the appeal decision does not go the way of the defense, the question arises whether or not Sayedee lawyers have a right to seek a review of the decision.

Article 105 of the constitution sets out the power of the appellate division to review its judgment. This Article states:
The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it. 
Order 26 of the Appellate Division rules sets out the procedure for this.
1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record. (emphasis added)
2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed. The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.
3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.
4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.
5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
6. Except with the special leave of the Court, no application for review shall be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed. (emphasis added)
8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.
9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed. (emphasis added)
The following should be noted about the 'review':
- there are very limited grounds that can allow a review of an appellate division decision be successful: there has to be an 'error apparent on the face of the record' which in case law is drawn very narrowly. 
- it is not an appeal. It is heard by the same bench of judges that made the order which is in question. So the applicant is asking the same set of judges to accept that they made a serious error! As one cam imagine, successful appellate division reviews are therefore very uncommon. 
- The International Crimes Tribunal gave itself the power to review its decisions and although it has dealt with dozens and dozens of applications for review, I am not aware of a single decision that was fully overturned.
In the Molla case (see below at Tuesday 11.25 pm), the defence argued that the accused had a right to review under article 105, but the attorney general argued that it did not - claiming that the limits of the an accused's right to appeal are set out in the International Crimes (Tribunal) Act 1973, due to Article 47(3) of the constitution which precludes a person accused of international crimes from seeking any constitutional remedy.

In the Molla case, the appellate division did not clarify whether there was a right to review or not - dismissing the review application without passing a reasoned order.

7.20 am: Good morning
In less than a couple of hours the appellate division should announce whether or not it has upheld the appeal of Delwar Hossain Sayedee against the decision of the International Crimes Tribunal which sentenced him to death for two offences involving crimes against humanity in the 1971 Independence war of Bangladesh or whether it has upheld the decision.

To see details of the two offenses for which Sayedee is facing a death penalty, see the sequence of posts below from 00:20 am earlier today

01:20 am: Goodnight
This will continue later in the morning .....

01:00 am: The defence arguments on death penalty conviction - charges 8 and 10
Earlier (at 00:30 am), the relevant extracts of the tribunal judgement on charge no 8 and 10 were set out - the ones where Sayedee received a death penalty. So, what is the defence response to these conclusions? Below are the extracts from the defence's appeal petition, filed before the appellate division, which seems to summarise the key arguments.

Tuesday, July 8, 2014


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

Wednesday, June 25, 2014

The truth behind Nizami's high blood pressure

There seems to be something in the nature of this tribunal process, such that the sudden postponement of the judgement against Motiur Rahman Nizami, the erstwhile leader of the Jamaat-e-Islami, on the grounds of his poor ill-health, is viewed by almost everyone as something other than simply a matter of his high blood pressure!

There are three theories set out in today's newspapers.

First, it is argued that the postponement is due to the arrival tonight of Sushma Swaraj, India's external affairs minister.

The argument here seems to be that the government did not want any distractions to this visit - whether  in the form of newspaper headlines, or possible violence resulting from the tribunal decision itself.

The problem with this argument is of course that (a) on Monday, when it was announced that Nizmai's judgement was to be given, her visit was very well known - so what changed in the subsequent 24 hours? (b) the Jamaat had not called a Hartal as it usually had done before verdicts, perhaps suggesting that it was not going to protest as it had in the past - so was there any real prospect of violence?; (c) before the postponement was made, some people were arguing that it was because of her visit that it was decided that the judgement should be given. 'A present to the Indians', as it was stated by someone. Can the visit be an argument both for the judgement and also for its postponement?

Of course, it is certainly possible that someone, at a late stage, suddenly thought better of it, and judged that the optics of the Indian foreign minister arriving just after a verdict, might backfire. Or perhaps, conceivably, the Indian government themselves suggested to the Bangladesh government that their minister's visit should not take place right after the judgement.

The second theory relates to the Narayanganj by-election, which is taking place on Thursday.

This does not really make that much sense. One can understand, perhaps, that the government might want the judgement to take place before the election - in order to fire up its political base  helping the Awami League to a victory. But how does it help the government's election prospect's to postpone it?

Of course, it is possible, with violence already predicted in the Narayanganj by-election, that the authorities feared that the judgement needed to be postponed so that any post-judgement protests did not mix in with the existing risk of the by-election violence. However, again this was a known factor at the time of announcing the judgement on Monday

The third theory is that the delay is linked in some way to on-going discussions between the government and the Jamaat-e-Islami. This is of course the big suspicion of war crimes tribunal campaigners who have always thought that the government was capable of coming to some back-room deal with the Jamaat for tactical political advantage. The big Awami League 'Play' is to get the Jamaat to split from its alliance with the BNP - and there is no greater lever in its hands than the trials to get that to happen.

I have no idea whether any talks are going on between these two parties - though I would suggest that if they are, they are not at a high level. But, whether discussions are going on or not, it seems unlikely that the judgment postponement has anything to do with this.

So, where does that leave us?

Is everyone just too willing to see some conspiracy, or political machinations, when none exists? Can high blood pressure in Bangladesh, ever just be high blood pressure? I would like to think so, though I am slightly inclined to think that the Indian minister's visit did have something to do with the need to postpone the judgement.

Friday, June 6, 2014

Bangla Tribune - Re-defining the meaning of 'Exclusive Investigation'

The Bangla Tribune - the Bangla language website of the English language newspaper, The Dhaka Tribune - must be running very short of stories to write about.

Yesterday, on the front page of its website, it published a long article, under the tag ‘Exclusive’ about how its ‘investigation’ uncovered the fact that the documentary, The War Crimes File, broadcast in 1995 on Channel Four TV in the UK, was directed by a person called Howard Bradburn. The English translation of this article is set out at the end of this post

The article of course redefines the word ‘exclusive’ to mean ‘the completely obvious’ and the word ‘investigation’ to mean, ‘reading the credits of a publicly accessible film’. One does have to wonder quite what this is all about, since anyone who cared to read the credits of the documentary would have known who was the director of the documentary,

I think the government can certainly feel rest assured that, with this kind of ‘exclusive investigation’, at least the Bangla Tribune will not be the source of any ground breaking journalism anytime soon!

The article was such an ‘exclusive investigation’ that the publishers did not consider it appropriate to give the name of the writer in the byline! Perhaps Faisal Abdullah - stand up, take a bow - decided at the last minute, out of sheer embarrassment and shame, not to give his byline. One can only imagine.

Friday, April 25, 2014

Tribunal's written order: 'Contempt proceedings commenced'

Below is a copy of the written order given by International Crimes Tribunal-2 on 17 April 2014.

On an application filed by the applicant intended to bring contempt proceedings against the opposite party Mr David Bergman under section 11(4) of the International Crimes (Tribunals) Act, 1973 for allegedly posting some derogatory comment disparaging the Tribunal upon criticizing its order and judgment in his personal blog namely bangladeshwarcrimes.blogspot dated 11.11.2011 and 28.01.2013 respectively – this Tribunal upon initial hearing, by its order dated 20.02.2014 directed the opposite party to explain his position fixing 06.03.2014 for submitting explanation. Eventually, the matter was taken up for hearing on 27.03.2014.

Thursday, April 17, 2014

Statement in response to Tribunal contempt decision

My statement in response to the International Crimes Tribunal decision today (17 April) to initiate contempt proceedings 
I am very disappointed by today's tribunal decision to initiate contempt proceedings against me relating to three articles I have written on my blog, Bangladesh War Crimes Tribunal
The blog contains information and analysis on the proceeding of the International Crimes Tribunal taking place in Bangladesh.
One of the articles in question was published on my blog in 2011, two and half years ago, and the other two were written in early 2013, over one year ago (here and here) - but proceedings are being initiated now. Why?

As we explained to the court, any criticisms of the tribunal contained in these articles were 'fair criticism' and permitted under Bangladesh law; they were accurate, referenced other published materials and legal decisions, and were made in sober and restrained language. (see here and here)