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.