21 Sept: Defence applications relating to Nizami and three other accused

On 21 September, following the adjournment of the application relating to Sayedee (see post), the defence argued five applications before the Tribunal relating to Nizami, Mojahid, Molla and Kamruzamann which had originally been filed on the 2 August 2010 (see post on 'delay'). Of these applications, the one challenging their continued detention is the most significant (see no.3). A summary of what took place is set out below, along with a number of comments, and relevant legal extracts.

1. Application for the Execution of letter of attorney
The Tribunal Chair asked Tajul Islam why letters of attorney was necessary, since the lawyers already had vakalatnamas (letter of authority). "What is the purpose of this? application."

Islam suggested that it had been necessary for previous High Court proceedings (see post on challenge to First Amendment of the constitution). He however agreed not to press the application.

2. Application for recalling the order issuing the warrant of arrest.
Advocate Alal for the defence stated that the Rules of Procedure can not provide powers to the Tribunal over and above the powers granted in the Act. He mentioned that section 11(5) of the Act set out the only circumstances when a warrant of arrest was issued. The Tribunal asked him then to explain the meaning of rules 6 and 9 of the Rules of Procedures - dont they give a power to issue an arrest warrant, they asked? Alal said that these rules were contradictory to section 11(5).

The Tribunal member, Fazlul Kabir then said, "The warrant of arrest in relation to the four men was never in fact formally executed. First, the police were unable to execute it, then the court ruled that the men should be presented before the court. Warrant of production is not the same as a warrant of arrest" He then asked, "How can we recall the warrant if it was not executed?"

The Tribunal chair then, putting that issue to one side, said: "Section 11(5) says that a warrant of arrest can only be issued if there has been a charge. But we have issued the arrest warrant under rules 9(1) which allows a warrant to be issued if it is necessary for investigation. Why should the warrant be recalled?"

The defendant lawyers then agreed not to press the application

3. Application relating to recall of detention order
The defence lawyer, Tajul Islam, argued that although Rule 6 and Rule 9 of the Rules of Procedure allowed warrants of arrest to be issued, they were 'ultra vires' to the act. He argued that section 11(5) sets out the only circumstances in which a warrant of arrest can be issued - which is when an accused has been 'charged' - and that the court cannot frame rules that go beyond this. He said that section 22 of the Act states that the Rules can be framed by the Tribunal but that they must be, as the section states, "Subject to the provisions of this Act".

The Tribunal member Fazlul Kabir interjected and said that whilst it is correct that the rules cannot "contradict" the Act, in this case rules 6 and 9 are not in contradiction with 11(5) of the Act - that they are simply providing more powers to the Tribunal. "Is there any prohibition saying that we cannot increase out powers of arrest?" he asked.

Tajul Islam responded by saying that although there is no direct prohibition, the intention of the wording of section 11(5) is very clear that this was the only circumstance when a warrant of arrest can be issued. He submitted that the rules 6 and 9 were in contrdiction to section 11(5) of the Act.

Islam then read out section 9(1) and emphasised the words, "necessary for a .... investigation". He said that when the application relating to Sayedee's warrant of arrest was discussed in court (earlier that day - see post) the Tribunal had stated that the prosecutor had not set out the reasons why it considered that detention was neecessary - and as a result the prosecutors agreed to file a new petition. Islam then said that this shortcoming was the same in relation to the application for detention in the case of Nizami etc

He also said that section 9 requires the investigation officer (through the prosecutor) to persuade the court that an arrest is "necessary for effective and proper investigation".

He also questioned, why detention was necessary, when the men were already in detention in relation to other cases.

He said that the detention of the men were 'male fide; as they were being detained for political purposes in the name of War crimes.

"The prosecution is using the process of this court to harass these persons. We cannot go to any other court. We cannot challenge any order from this Tribunal," he said.

He said that these men were not members of auxillary forces. They are political leaders.

He also argued that no applications has been made against any member of the army personel accused in 1973 of war crimes. 195 men were identified he said but no application has been made against any of them.

He concluded by saying that these proceedings must be fair and neutral.

In response to the defence application, prosecutor Zead-al-Malum responded. He said that the challenge to the Act and the rules was included in the writ petition 6836 (see post) but that in the end it was not pressed. As a result a question of recall does not arise.

He said that investigation was on going. If the men are released, documents will be destroyed, the men will leave the country, or they will interfere with the evidence.

The Chief Prosecutor himself spoke and made this point. "The law is very clear and there is no departure from the Act or the Rules. The rules are supplemtary and compatible with the the Act. There has been no breach of law."

Tajul Islam then tried to bring to the court's attention a newspaper article from the newspaper Sangram [a Jamaat newspaper] which criticised the manner in which the incidents were being investigated

The court then passed this order (This is not word for word)

"The petitioners filed an application to recall the order of detention passed on 2 August 2010 and the release the petitioners from custody. Md Tajul Islam, for the petitioners submitted that the Tribunal did not have jurisdiction to issue the warrant of arrest by its order on 2 August. He submitted that the law and and the rules do not authorise the issuing of a warrant of arrest. He also submitted that these men were respectable men within society, two of whom were ministers and that they were being arrested in a male fide manner and being treated in a male fide way.

In its reply to the petition, Zead-al-Malum submitted that the accused had argued the matter in the High Court in a Writ Petition regarding the Act and the Rules and the power of the Tribunal, and ultimately that petition was rejected as 'not pressed'. and that as a result, the petitioners are prevented from bringing the same argument in this Tribunal. He also argued that these men were very influential in society and that they may hamper the investigation as they are influential everywhere, and on this submission opposed the petitioners release.

On 2 August 2010, the Tribunal issued a warrant of arrest on being satisfied that it should be issued to ensure an effective and proper investigation. Investigation is going on. No new facts have come to us. All the men are influential people. We are of the view that if released the investigation may be hampered. We are therefore inclined to reject the petition."

4. Application for certified copies of documents
Tajul Islam said that in the interests of a fair trial, as required by section 4(2A) of the 1973 Act, his client should be given copies of the papers.

The Tribunal chair said that you he would get details of the charges at least 21 days before the trial starts. "You can inspect the documents now but you can't copy them," he said.

"The Act does not give you the authority to take certified copies. You have no right to obtain certified copies," he added.

He then gave the following order:

"This is an application to get copies of the documents relating to case ICDB misc 1. Tajul Islam submitted that for the purpose of a fair trial, he wanted to get certified copies of documents. It was opposed by the prosecution. Section 16(2) of the Act states that copies of formal charges and documents will be given at a reasonable time before the the trial. Rules 60(11) - says that the registrar has the power to supply a certified copy of the judgment of the Tribunal upon an application filed by the accused.

In consideration of both the sections and the rules, the defence has no right to get certified copies of records in Tribunal at this stage. So we are not inclined to accept this peitition and it is rejected."

5. Application of stay
The defence lawyer Advocate Fakrul argued for the defence. The Tribunal Chair asked the defence, "Is there any proceedings to stay?" He said that in order for the proceedings to start, section 9 of the 1973 Act states there must be a formal charge, and this has not happened. Fakrul did not initially respond to this question but argued a number of points including that the transfer of cases from the magistrate court to the Tribunal was illegal. The Tribunal members, in response to that point, said, "We did not receive any records."

The Tribunal then passed an order in the following terms.

"An application was made to stay the proceedings in relation to Misc case 2/2010. Mr Fakrul Islam argued that the proceedings have been illegal and as such there should be a stay or proceedings. It was opposed by the prosecution. The proceedings of any case in this Tribunal will start with the submission of the formal charge. There are no proceedings in thie Tribunal. Miscellaneous case is a just that a miscellaneous case which arrises out of some applications filed by the prosecutor and the defence. There has been no formal charge. Proceedings have not started and therefore there cannot be a stay of proceedings. Application rejected."

6. Application for transfer of cases back to magistrate court
The court gave an order in the following terms:

"We received an application to send the cases relating to one that was filed at Police Station Palabi in 2008, and the other filed in Police Station Keraniganj in 2007 back to the Magistrates court. Mr Tajul Islam argued for the petitioners. He states that these cases were pending in the magistrates court and then transferred to the Tribunal. He submits that these cases do not come within the purview of this Act and as such should be sent back.

The two cases were not brought to this Tribunal and were not received by this Tribunal. They were sent to the Investigation Agency. Investigation officers can investigate any information that is brought to them, and take appropriate action. There is no scope to send the cases back to the Magistrates court. Application rejected."

Comments
1. It is notable that the ruling of the Tribunal relating to the defence application seeking recall of the detention order (no. 3 above) neither summarises the defence arguments properly nor sets out any kind of detailed reasoning in response to them. So for example, the order does not mention:

• the relationship between section 11(5) of the Act and Rules 9 and 6 of the Rules of Procedure. (As is set out above, in the course of proceedings, the Tribunal members did make some points on this issue, but their final view on it, and the reasons for rejecting the defence lawyer's interpretation was not mentioned in the order.
• the argument made in the defence's written application (though not argued in court) that its view that the men must be charged with an offence before an arrest warrant can be issued is supported by the text of both the warrant of arrest and the production warrant which that the men have been 'charged' with an offence. (see point 5 in this post
• the defence argument that if the application filed by the prosecution about Sayedee's arrest was inadequate (see comment made by the Tribunal earlier in the morning of the 21 Sept, see previous post), then so was the one filed in relation to these four defendents.

The failure by courts to provide proper reasoning for their decisions is not something unique to the Tribunal - it does happen in other courts in Bangladesh. However, this does not excuse the Tribunal since it was supposed to be working to 'international standards.'

Due to section 24 of the 1973 Act* and the First Amendment of the Constitution (see post), the defence can not appeal this order. The order may, however, become relevant at an appeal following conviction. However, any future court looking at this order would have no idea at all of the defence arguments, or indeed response of the Tribunal to them. This is an area of Tribunal that surely must significantly improve.

2. Whether the warrant of arrests were lawful or not depends on the relationship between 11(5) of the Act and rule 6 and 9 of the Rules. Section 22 of the Act states that rules can be made, "subject to the provisions of this Act". However, it is notable that neither of the three parties to the Tribunal - the prosecution, the defence nor Tribunal members - considered case law relating to the meaning of these words which are common in other legislation and have been interpreted.

Without looking at this case law it is difficult to see how the Tribunal can come to a conclusion as to whether or not the rules can be created that allow a warrant of arrest to be issued in a situation different from that envisaged by section 11(5) of the Act. (I will try and look at what this case law says, in a separate post).

3. As mentioned above, the defence cannot challenge this (or any other) order issued by the court. The extent to which this is such a significant problem is exemplified with the Tribunal order following a challenge to the order of detention.

The context of the challenge that (a) the Tribunal members themselves drafted the rules, and (b) the Tribunal members themselves issued a warrant of arrest on the basis of these rules. For the Tribunal to rule in favour of the defence, it would have to acknowledge (i) that rules 6 and 9 were incorrectly drafted; and (ii) its order issuing a warrant of these rules was wrong.

It is difficult to imagine any tribunal ruling against itself in this fashion. This is exactly why it is so important for there to be openings to challenge these 'interlocutory' orders. The inability to challenge these order is highly problematic and goes against international norms.

4. As noted above (see application 5), the Tribunal rejected the application seeking the provision of certified copies of documents that were filed with the Tribunal.

However, the defence lawyers have confirmed to me that the prosecution has now provided them ordinary copies of all the filed applications. It seems that the prosecution gave at least one of the copies in court after the Tribunal asked it to do so - and the others were given informally.

If this is the case, it remains very unclear why the Tribunal rejected the defendant's application for certfied copies of the applications?

Oddly, however, the defence has stil not been provided copies of any of the court orders.

5. Apart from the one application challenging the detention order, the prosecution did not make any response in court to the others applications. Despite this, the Tribunal, in its orders, stated that the applications were "opposed" by the prosecution.

It is not clear how the Tribunal knew the position of the prosecution since no one from the prosecution team made any statement in court.

This may be of no significance all all - but it is rather baffling.

Relevant Legal Extracts
Section 11(5) of the 1973 Act: "

Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."

Rule 6 of the Rules of Procedure:

"If the investigation officer has reason to believe that any offence has been committed, he shall proceed in person to the spot, investigate the facts and circumstances of the case, and if necessary, take steps for the discovery and arrest of the accused."

Rule 9(1) of the Rules of Procedure:

"An investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for arrest of a person at any stage of the investigation, if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation."

Section 24 of the Act states:

"Bar of Jurisdiction.- No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any court of other authority in any legal proceeding whatsoever, except in the manner provided in section 21."

Section 21 states:

"Right of appeal.- (1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal shall have the right of appeal to the Appellate Division of the Supreme court of Bangladesh against such conviction and sentence.
(2) The Government shall have the right of appeal to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal.
(3) An appeal under sub-section (1) or (2) shall be preferred within sixty day’s of the date of order of conviction and sentence or acquittal.”

Sept 21/22, 2010: Application relating to arrest of Sayedee

Delwar Hossain Sayedee is in prison on charges unrelated to alleged 1971 crimes. On 21 July, however, the prosecution filed an application with the Tribunal for it to issue a warrant for his arrest on charges relating to war crimes, crimes against humanity etc. On 5 August (see post), the Tribunal heard the prosecution's application and, because he was already in prison custody on other charges, issued a "production warrant". First because of his health and then because of renovations being undertaken in the Tribunal court room, hearings related to the application were adjourned on two occasions. (see post about delays).

On 21 September, Sayedee was produced before the Tribunal for the first time. Here is a summary of what took place in court in relation to this application on 21 and then 22 September Following the summary, I make some comments on the proceedings.

[It may be helpful to read this post along with a previous post (setting out the defence arguments against arrest/detention of the four other defendents) and the post immediately following this one (setting out what happened to these applications]


Syed Haider Ali stood up and argued for the prosecution. He first read out from the hard copy of the prosecution's original application that had been argued before the court on 5 August which set out allegations against Sayedee.

The Tribunal chair then told the prosecutor that he needed to answer the key question; how was section 11(5) of the 1973 Act compatible with Rules 6 and 9 of the rules of procedure. (Sections are set out at end of post)

The prosecutor read section 11(5) of the Act and agreed that it stated that an arrest warrant could be issued against someone who had been charged. The Tribunal chair then asked the prosecution, to "please satisy us whether this person has been charged under the Act."

The prosecutor then read out a number of sections from the Act and argued that it set out provisions relating to a number of different stages in the Tribunal process - investigation, prosecution and punishment. He then said that section 11(5) needed to be read in the context of the whole Act, and it only related to one aspect of the Act. It is "not an independent section" he said.

He then quoted rules 6 and 9 of the Rules of Procedure which he said clearly stated that a warrant of arrest could be issued during the process of investigation and before charges have been laid.

He then said, "there is no other alternative but for the Tribunal to issue an arrest warrant during investigation."

He said, during the investigation so far, evidence has been found and there was a risk that some evidence could be destroyed. If Sayedee is not detained, "he can destroy the evidence".

The Tribunal chair then asked the prosecutor why it was that in the section of the application dealing with "grounds", there was nothing saying that an arrest was "necessary for effective and proper investigation". The prosecutor said that this was contained in the prayers, but the Tribunal members responded by saying that it must be in the 'grounds' of the application. It was not enough to simply say these things orally in court, it must be part of the application, the Tribunal said.

The Tribunal agreed with the prosecutor that the application dealt with the gravity of the alleged offence, but said that it did not explain the why his detention was necessary. "why should we issue a warrant?" the Tribunal chair asked.

The Tribunal chair said, "what is the purpose of keeping him in custody. Can you atisfy the Tribunal?"

The Chief Prosecutor then offered to file a supplementary application. The Tribunal chair said, "We want to be satisfied, that is all. Still now we are not satisfied."

He told the prosecutor, there will be "no more adjournments. This must be produced tomorrow."

The case was then adjourned to the following day, Wednesday, 22 September with the Tribunal requesting that Sayedee be produced in court.

On Wednesday, the prosecution submitted a supplementary affidavit. Before he was able to start his application, the Tribunal Chair pointed out that Sayedee was not present in court and that it has received a note from the jail saying that he was sick. The Chair said that as he had already passed an order saying that the application should be heard in Sayedee's presence, the application would not be heard today without him, and that the matter would be adjourned.

Tajul Islam for the defence then got up and said that the court cannot simply delay proceedings so that the prosecution has time to fill in "the lacuna". "Yesterday you said that there was not enough evidence to allow the application".

The Tribunal chair told Islam that he could raise all these issues at the next hearing.

Another defence lawyer then got upto speak. He said that he wanted to raise a question about the "production warrant." He said that the warrant was unlawful. He tried to read out the wording on the warrant and was shouted down by the Tribunal Chair. "Take you seat", he said. (It appears that the lawyer wanted to state that the production warrant assumes that the accused person has been charged, since the word "charge" is used in the warrant - see point 5 in this post).

The Tribunal then read out the following order (this is not word perfect).

"The suspect Sayedee has not been produced before this Tribunal today by the prison authorities following the prodcution warrant being issued. The suspect is said to be sick and unable to move. As such he could not be produced. The Tribunal in its earlier order expressed its desire to pass the order in the presence of Sayedee, and he is not in court today. The prosecution submitted its application today for which prayer for time is included. Supplementary petition will be heard on 12 October 2010. Issue a production warrant accordingly."

Comment
1. Further Adjournment: It is unclear why on Wednesday 22nd, the Tribunal insisted on a further adjournment. On the previous day, along with this application relating to Sayedee, the court had heard six applications relating to the other four defendants currently detained in custody who were not present in court at the time (see next post discussing these applications). If applications and orders can be given against four defendents when they were not present in court, why did the Tribunal require an adjournment the following day when Sayedee was absent? The order justifies the delay by reference to a previous ruling it had issued requesting that Sayedee be present in court - but since the Tribunal Chair, at the end of the first day, had specially told the prosecution that no more adjournments would be allowed, it seems rather odd that the court then gave nearly a three week adjournment.

The Tribunal registrar explained to me that there was a difference between a hearing relating to an arrest warrant (where the person to be arrested should be present) and the other applications following an arrest warrant (where the defendents did not need to be present). When this was put to Tajul Islam, the defence lawyer for all five accused, he said that he did not think this was a legitimate distinction being made.

When I asked Islam why he simply did not tell the court that, as his representative, he did not mind that his client was absent, Islam told me that he also preferred Sayedee to be present in court when the order was given! So, perhaps no harm has been done by yet a further adjournment!

2. Tajul Islam did though make a further allegation which is rather difficult to believe. He says that Sayedee's family had told him that Sayedee was in fact well enough to be brought to the court on the 22nd. Islam alleges that the government had manipulated the jail authorities to get them to say that he was unwell so that the court could give yet another adjournment allowing the prosecution to strengthen its warrant application.

It is a bit difficult to believe that the government would go to these lengths - particularly because, if the allegation was true, when Sayedee next came to court, the truth would easily become known. Moreover, I would argue that an adjournment does not really help the prosecution. Although the court is putting the prosecution through its paces (i,e asking for a supplementary application) it is pretty clear, going by the previous Tribunal decisions of the Tribunal, that the court will pass an arrest or detention order against Sayedee. So what would be the purpose of the government buying time?

However, it will be interesting to see what happens when Sayedee is next brought to court - and whether the defence try to substantiate its allegation.

Relevant law
Section 11(5) of the 1973 Act: "Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."

Rule 6 of the Rules of Procedure: "If the investigation officer has reason to believe that any offence has been committed, he shall proceed in person to the spot, investigate the facts and circumstances of the case, and if necessary, take steps for the discovery and arrest of the accused."

Rule 9(1) of the Rules of Procedure: "An investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for arrest of a person at any stage of the investigation, if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation."


Links
bdnews24.com - Sayedee Back to Jail, 22 Sept 2010

Defence lawyers access to court documents

In an earlier post, I looked at the time it has taken for the Tribunal to hear defence lawyers' applications challenging the arrest/detention of the five men accused of war crimes.

Another application which has also not yet been heard by the Tribunal concerns access to copies of prosecution documents filed with the Tribunal.

The Tribunal registrar, Mohammed Shahinur Islam, confirmed to me last week, that he has not yet given to the defence lawyers copies of any of the documents filed by the prosecution team as part of its application seeking their arrest. These prosecution documents were filed almost two months ago, and resulted in the detention of the first four defendants six weeks ago.

The failure to provide documents is despite the fact that they were arrested under rule 9 of the Rules of Procedure which states that, "At the time of executing the warrant of arrest ... copy of allegations is to be served upon such person." (emphasis added)

In addition, in the 26 July order itself directing the arrest of the four men, the court specifically stated that the copy of the allegations should be served on the men.

Tajul Islam, the main Tribunal defence lawyer says that "copies of allegations must mean the copy of the application filed by the prosecutor, as well as any investigation report supporting the application by the prosecutor."

In the Tribunal registrar's view, however, "Although rule 9(3) says that copies of allegations should be given, it does not say what particular document should be given."

He therefore defends the Tribunal's decision so far not to provide any documents. "The defence laywers have an application before the court and it will be dealt with then," he said.

The defence lawyers filed an application with the court on 2 August 2010 seeking "certified copies of the record of ICT BD-case no 1/2010 including all petitions and documents filed with the Tribunal and all orders passed by the Tribunal upto and including 2nd August 2010."

The defence lawyers have however had an opportunity to inspect the documents - but during the inspection they were not allowed to take any notes of the documents.

The Tribunal registrar said, "There is no provision in the law or rules to allow them to take notes. It is not permissable."

The 1973 Act and the Rules do not provide much detail what - and when - documents should be provided to the defendants.

Apart from rule 9(3) in the Rules of Procedure relating to "copy of allegations", the only other mention of documents is set out in section 9(3) of the 1973 Act itself which states that, "The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be prodcued along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges."

In ordinary criminal court practice in Bangladesh, provisions in the Criminal Rules and Orders (Practice and Procedure of Subordinate Courts) 2009 set out what court documents can be given to the defence lawyers and others.

Although these particular rules do not apply to the proceedings before this Tribunal - nonetheless they do provide an interesting comparison to the way in which the Tribunal is dealing with the provision of information to the defence.

Rule 243 allows the parties to have wide access to documents filed with the court. It states that:

"Parties to a criminal proceeding are entitled to obtain copies certified or uncertified of any portion of the record of trial or inquiry including such police papers as may be used as evidence at the trial or inquiry and final report submitted by the police under section 173 of the [Criminal Procedure] Code."

Rule 221 says that the documents should be given by the next day. Sub-section (1) states that, "Subject to the provisions of sub-rule (2), information shall ordinarily be supplied by forenoon of the next open day after the presentation of the application."

And sub-section (2) states that "Urgent application shall ordinarily be complied with on the the day on which they are presented. ... The Judge-in-charge or the presiding Officer should see that whenever possible, information capable of being supplied from the current records, Registrars, etc, which can be easily located, is supplied to the applicants on the day the applications are filed."

In the ordinary courts, documents sent by the police to the magistrate seeking police detention, and other prosecution applications for detention would be provided to the defence.

These court rules also set out the normal court procedure in relation to 'inspecting' documents - and they are in fact almost as strict as those now being applied in the Tribunal. Rule 328, note 2 states that;

"An advocate may read any document or record specified in his application the inspection of which has been allowed by the court, but he shall take no notes other than such short memorandum (to be written in pencil on slips of paper to be provided by the Assistant before whom the inspection takes place) of the date and nature of the documents, names of parties etc as may be necessary to identify or describe the document or record in case a copy is required, but this permission does not extend to the taking of a copy of the proceeding or document or any part thereof to to making extracts therefrom."

Defence arguments against arrest and detention

This post summarises the key arguments set out in the applications filed by lawyers acting for the five detained Jamaat-e-Islami leaders against their arrest and detention. They are due to be heard on Tuesday 21 September (see blog, about the delay in hearing the applications). The arguments are set out here without comment.

It is interesting that the lawyers have not applied for 'bail'. Tajul Islam, the main lawyer acting for the accused, explained that this was because they believed the detentions were "void ab initio." He said that, "The question of bail only arises when formal proceedings have started."

The lawyers have filed four applications on this issue, seeking:

• the return of the records of two criminal cases back to the court of the Chief Metropolitan Magistrate;
• recall of the order of issuance of warrants dated 26th July 2010;
• recall of the order of detention dated 2nd August 2010 and to release the petitioners from custody;
• stay of all further proceedings pending before the International Crimes Tribunal.

The arguments set out in the applications are as follows:

1. There is no provision in either the International Crimes (Tribunals) Act 1973 or the Rules of Procedure that allows the transfer of cases pending before the Chief Metropolitan Magistrate between it and the Tribunal - and therefore the transfer was "without jurisdication, illegal and void."

The lawyers are referring to two cases - one filed on 25 January 2008 relating to alleged crimes committed in Pallabi and the other filed on 17 December 2007 relating to alleged crimes in Keraniganj. The first four defendants have been arrested on the basis of allegations in these cases.

2. The arrest warrants dated 26 July 2010 were issued in violation of section 11(5) of the 1973 Act - as this only allows the Tribunal to issue a wrrant of arrest against a person who has been "charged" with a crime.

The section states: "Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."

The word 'Charge' is defined in rule 2(5) of the Rules to mean "the accusation of crimes against an accused framed by the Tribunal"

The application states, "Since no charge has yet been framed by the Tribunal against the accused petitioners, the issuance of a warrant of arrest against the accused petitioners is in violation of section 11(5) of the 1973 Act read with Rule 2(5) of the Rules."

3. Section 16 of the 1973 Act sets out the particulars to be included in the charge and the manner of framing charges against an accused person. It states that:

"Every charge against an accused person shall state:
(a) the name and particulars of the accused person;
(b) the crime of which the accused person is charged;
(c) such particular of the alleged crime as are reasonably sufficient to give the accused notice of the matter with which he is charged."

No charge in the manner contemplated under section 16 has yet been framed against the accused petitioners.

3. There are no proceedings pending before the Trbiunal under section 9 of the Act and as such the Tribunal has no authority to issue warrants of arrest against the accused petitioners.

Section 9(1) states that the "Proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor ... of formal charges of crimes alleged to have been committed by each of the accused persons."

'Formal charge' has been defined in Rule 2(1) of the Rules to mean, "Accusation of crimes against the accused in the form of a petition lodged by the prosecutor with the Tribunal on receipt of the Investigation report."

The application states that no formal charge has yet been drawn up or framed against any of the accused. No investigation report has been submitted by the Investgation agency. "In the absence of an Investigation Report, no question arises of the prosecution submitting formal charge of crimes agsint the accused petitioners in the manner contemplated under section 9(1) of the 1973 Act read with Rule 2(11) of the Rules. As such no proceedings can be said to have commenced against the accused petitioners under section 9(1) of the 1973 Act. Accordingly the order of issuance of Warrant of Arrest dated 26 July 2010 is patently illegal and liable to be recalled for ends of justice."

4. Rule 29 of the Rules provides that the "Tribunal shall take cognisance of an offence against any accused upon examination of the formal charge, the investigation report, the papers, documents and the evidence submitted by the prosecutor, in support thereof if they disclose a prima face case for trial of the accused person."

Rule 30 of the Rules goes onto state that, "after cognisance of an offence is taken, the Tribunal shall issue process of warrant as it thinks fit and proper, in accordance with rule 22."

5. ICT-BD form No 03 (warrant of arrest of accused), and ICT-BD form No 04 (order requiring production in court of accused in prison) clearly indicate that the Tribunal may issue warrants of arrest against an accused person only after he has been charged with an offence under section 3 of the Act. "Since the accused petitioners have not yet been charged with an offence under section 3 of the 1973 Act, the order of issuance of Warrant of Arrest is patently illegal and liable to be recalled for ends of justice."

Background
1. A senior independent and highly respected Bangladesh lawyer had previously expressed his concerns about the legality of the warrant of arrest along the lines set out in para 2 above. See: Questions raised about arrest warrants.

The prosecution is relying on rule 9(1) which states that the:

"investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for arrest of a person at any stage of the investigation, if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation."

The argument made by Advocate Anisul Huq is that this rule appears to be inconsistent with Section 11(5) of the Act which states that a person can only be arrested once that person has been charged. He goes onto say that the Act trumps the rules when there are any inconsistencies.

2. The forms referred to in para 5 above, are appended to the Rules of Procedure. They are both set out below

ICT-BD Form No 03
Warrant of Arrest of Accused

To ----------- Metropolitical Police Commissioner ------------/Police Super, District --------/ the officer in Charge, Police Stattion ............., District

Whereas

--------------- (name of the accused) of ---------------- Police Station -----------------District ------------- stands charged with the offence punishable under section 3 of the Interatnional Crimes (Tribunals) Act 1973 you are hereby directed to arrest the said accused and prodcue him before the Tribunal

Given under my hand and the seal of the Tribunal as directed, this the --------- day of ------- (month) of ------------ (year)

By order of the Tribunal

Registrar

ICT-BD Form No 04
Order Requiring production in court of accused in prison

International Crimes Tribunal, dhaka
ICT BD Case No

To The Officer in Charge of the Jail at ----------. Wheras the attendance of ------------ at present confined/detained in the above mentioned prison, is required in this tribunal to answer to a charge of the offence punishable under section 3 of the International Crimes (Tribunal) Act 1972 of for the purpose of the proceeding of the cases as mentioned herein.

You are hearby required to prodcue the said accused under safe and sure conduct before this Tribunal on --------------------- day of -------------- 20------------ by 10.00 AM for the purpose of the said proceedings, and after this Tribunal has dispensed with his further attendance cause him to be conveyed under safe and sure conduct back to the said prison.

Given under my hand and the seal of the Tribunal as directed, this the ------ day of ------ (month) of ---------- (year).

By Order of the Tribunal

Tribunal delay in hearing challenges to detentions

On Tuesday 21 September 2010, the Tribunal is due to consider applications challenging the arrests of, and detention orders against, Nizami, Mojahid, Kamaruzzaman, and Molla under the International Crimes (Tribunal) Act 1973 - six weeks since the defence lawyers first filed the applications with the Tribunal.

The Tribunal will also consider a similar application relating only to Sayedee (who has though not yet formally been arrested under the Act).

Why has it taken such a long time for the court to hear these applications - when the Tribunal had earlier dealt with two prosecution applications (relating to the issuance of arrest warrants) within a number of days, when the Tribunal has no other cases to deal with, and when in the ordinary court system in Bangladesh the defendants' lawyers would have be given an an opportunity to argue against detention before the court even passed an order?

The relevant chronology is as follows:

• 21 July: Two separate applications filed by prosecution - one for the issuance of an arrest warrant against Nizami, Mojahid, Kamaruzzaman and Molla and the other relating solely to Sayedee.
• 25 July: Applications 'registered' by Tribunal*
• 26 July: Tribunals hear prosecution application relating to the first four men and issues arrest warrants against them.
• 2 August: Four men formally produced before the court. On that date, defence lawyers tried to put before the court an application challenging the basis for the issuance of the arrest warrants. The court however stated that they could not accept these applications as they first had to be filed with the registrar. See blog. Following completion of hearing, the defence team file applications challenging basis for the arrest/detention of all of the defendants.
• 5 August: Tribunal hears prosecution application relating to arrest of Sayedee and issues warrant for his production in court. See blog
• 10 August: Sayedee was not produced in court as he was unwell. Defence lawyers try to argue the applications relating to other four defendents, but the court said that since the same arguments also applied to Sayedee, it would be appropriate to wait until all the defendants could be in court. The defendent lawyers reluctantly agree to this. 25 August was set as the next day. See blog.
• 25 August: no hearing took place as the Tribunal chamber was being refurbished. 21 September was the next day set for hearing.

The lawyers filed their applications challenging the basis of detention on 2 August. There was then an initial eight day gap before a date was set to allow these applications to be heard. When Sayedee did not appear in court on 10 August, one might have expected the court to hear on that day the applications relating solely to the first four defendants - but the court decided that it wanted to hear the applications for all five men together, and postponed the hearing.

"Maybe we should have pressed for the hearing," Tajul Islam, the defendants main Tribunal lawyer told me. "But since we did not want to annoy the Tribunal, we avoided an argument with the court."

The court adjourned the hearing for a further two weeks until 25 August. It is unclear why the court could not have set a date soon after the 10 August.

Sometime between the 10 and 25 August, refurbishment started in the Tribunal courtroom - and as a result the hearing on 25 August was adjourned to 21 September, creating a further delay of a month.

The Tribunal registrar, Mohammed Shahinur Islam, told me that "All of a sudden the false roof in the court room was about to fall, and when we realised, the government talked to me and we asked them to start working to repair it. We did not realise the work would take so long.

"It was an exceptional circumstances. The delay was not to deprive the defendents of anything."

It does however seem odd that it was not possible for the Tribunal to make some other arrangements to allow such an important hearing to take place.

Of course the delay by the Tribunal to hear the defence lawyers is not "unlawful" - the 1973 Act exempts the application of the Criminal Procedure Code, and the Tribunal has the power to make up its own procedure. However, it does raise questions about what standards the Tribunal intends to set.

It is rather surprising that the defence lawyers neither made any special application to the Tribunal seeking an early hearing nor, as far as I am aware, sought media attention on the delay.

If on Tuesday, the Tribunal rules against the accused, the lawyers will not be able to challenge it. The 1973 Act does not allow appeals against any kind of court order, other than the judgement itself (see section 21 and 24 of the 1972 Act) - and the first amendment of the Constitution restricts access to the High Court (see blog).

In the ordinary courts, the lawyers would be able to appeal to the sessions court. It would probably take between one and two months to get a date for hearing (according to a senior lawyer) - but the sessions courts at least have the excuse that they are very busy with hundreds of cases, and that it takes time for the documents to move from the magistrates to the sessions court.

* The Tribunal registrar was not able to confirm the dates of filing and registering of applications, so it is possible that these dates may be out by a day or two.