When I entered the court room, I introduced myself to SQC's lead lawyer, Fakrul Islam, who told me that he had filed two applications with the court - one stating that the prosecution application to issue a warrant of arrest was now no longer valid since he was already in detention and another one challenging the presence of two of the judges on the Tribunal.
The hearing started with the Chief Prosecutor stating that an additional application had been filed. He said that this was necessary since SQC had already been detained in custody, and therefore the prosecution was no longer seeking a warrant for his arrest, but instead a warrant for his production in court.
He said that the application was being made under Rule 9(4) of the amended Rules of Procedure. This new amendment allows the Tribunal to (a) issue a production warrant for the person to be brought to court and (b) direct the person to be detained. (see relevant blog). It states:
'If a person is already in custody in connection with an offence or any case other than under the Act and the Tribunal is satisfied that a detention order is necessary for effective and proper investigation of any offence under the Act, the Tribunal may issue a production warrant and direct the person to be detained in custody.”The prosecution argued that SQC was a 'delinquent' and that he had been uttering 'lavish mischievous statements' against the Tribunal, and that being so, an application was filed on 15 December for an arrest warrant to be issued against him, but that since then he had been arrested, and that therefore a secondary application was filed, asking him to be produced in court under rule 9(4).
The prosecution asked the court that the accused be kept in confinement in custody, short of which the applicant is so powerful and influential, that it would be very difficult to for the investigation agency to proceed effectively and properly and that is why 'we are praying for action under rule 9(4)'.
The judge asked why it was necessary for 'effective and proper investigation' that he be detained.
The prosecution read out part of their written application and cited comments that SQC is alleged to have said about the Tribunal.
There was then a discussion between the Tribunal and the prosecution about how it was possible to issue a production warrant when the accused was in police custody and not in jail custody.
When the prosecutor sat down, Fakrul Islam them stood up to argue in response. The Tribunal however did not allow him to speak saying that there was a system to first file a petition with the registrar, and then a date would be set. It was not entirely clear if the applications had been filed or whether the defence lawyers had tried to file the applications but were not able to do so. The lawyer said that he had had gone to file the applications that morning, just as the prosecution had that morning filed their supplementary application. The Tribunal chair said that there would be another time for him to put his arguments in court.
Without any further hesitation, the Tribunal Chairman then read out his ruling (this is not a word for word transcript):
'The Chief Prosecutor has submitted an additional application praying for the issuing of a production warrant for the arrest of SQC accused under section 3(2) of the International Crimes (Tribunal) Act 1973). The Chief Prosecutor submitted that subsequent to filing of original application, the accused had been arrested in connection with Ramna PS case no, 55(06)/2010 dated 16 October 2010 under sections 143/147, 148, 149, 435, 326, 307, 427, 428, 429 of the Penal code. As such the prosecution has now applied for a prodcution warrant on the accused. Further submitted that accused had taken part in atrocities committed by Razakers and Al Badr and pro-pakistan forces formed during the liberation war in 1971. It was further submitted that investigation agency are investigating offences committed by the accused. This accused is a member of parliament of the country. He further submitted that the evidence was coming from insde and outside the country and the investigation agency are collecting documents and materials that would be used against the accused at the Tribunal. For effective investigation, he should be arrested as without detention the investigation would be prejudiced. Further submitted on behalf of investigation agency a report which was placed before the Chief Prosecutor. On perusal of the same, we are satisfied that materials have been collected against the accused and are being collected. Also satisfied by giving interviews in the press and electronic media an atmosphere has been created in minds of witnesses. Along with a production warrant let a production warrant be issued the accused SQC against whom there is an investigation of a case under the ICT as recorded in case 4/2010, and that he be produced in the Tribunal on 30 Dec 2010. Let copy of the report by the Investigation Agency to the Chief Prosecutor be sent to the accused along with production warrant.'
The Tribunal seems to be treating prosecution and defence applications differently. So whilst the prosecution's application filed that morning was accepted by the Tribunal, the ones by the defence was not. I asked the registrar to explain this, but he simply said it is for the Tribunal to set its own procedure.
Putting to one side the issue of filing application, it also remains unclear why the Tribunal does not consider it appropriate to hear what the defence has to say in relation to the application before the court that day relating to the issuing of a production warrant.
Yet again, the Tribunal issued its ruling immediately after the arguments had been made, without any break or discussion.