Four days prior to this hearing, the Tribunal had made some amendments to its rules (see blog).
In court Sayedee was wearing a white punjabee, black collar, and a red topi. Before the Tribunal started he was talking to his lawyers, including Tajul Islam.
The prosecutor Haider Ali presented the prosecution case. The prosecutor had previously filed an application seeking a warrant of arrest. This stated:
'Whereas, in the course of the investigation undertaken by the Investigation Agency set up under Section 8 of the 1973 International War Crimes (Tribunal) Act (Act 19 of 1973) into the activities of the offender, testimonies have been obtained to the effect that during the Liberation War in 1971, he colluded with the occupying Pakistani army and razakars (collaborators), Al-Badr, Al-Shams and other anti-Liberation forces to form an Auxiliary Force to the Pakistani Army and carried out offences in different parts of Bangladesh that included arson, looting, rape, torturing women, mass murder and other offences.In relation to why Sayedee should be arrested, the application stated:
Initial investigations show that during the Liberation War in 1971, the offender Delwar Hossain Sayedee aka Delu met with Captain Ejaz of the Pakistani army, and provided to him assurances of full cooperation to assist in protecting the integrity of Pakistan.
Whereas, after establishing a close relationship with Captain Ejaz, Delwar Hossain Saidi aka Delu established an Auxiliary Force consisting of the local Jamaat-E-Islami members and other anti-Liberation forces including razakars (collaborators), Al-Badr and Al-Shams members to assist the Pakistani army. They took up a firm stance against the liberation forces of Bangladesh, spreading out through Pirojpur and its surrounding areas to commit offenses that included attacking freedom fighters and citizens who supported the Liberation War by murdering people, setting fire to houses, looting, raping women and forcibly handing over women to the Pakistani army in order for them to be raped.
On May 8, 1971 at around 3 p.m., Delwar Hossain Saidi aka Delu and his companions accompanied the Pakistani army to the residences of supporters of the Liberation War, including freedom fighters and freedom fighters’ families: (1) Alamgir Poshari, father – late Shaijuddin, (2) Mahbub Poshari, father - late Mannan Poshari, (3) Chand Miah Poshari, father - late Shaijuddin Poshari, (4) Jahangir Poshari, (5) Kanchon Poshari , sons of - late Shaijuddin Poshari of Chitalia, Thana - Pirojpur, Zila - Pirojpur. The Pakistani army surrounded their houses, and members of the group entered the houses and removed cash, gold jewellery and other valuables. They then set fire to the houses and burnt them down. On the instructions and under the leadership of Delwar Hossain Saidi, the miscreants used the Pakistani army rifles to shoot and kill a number of people. They also handed over a number of people to the Pakistani army, sending them to their deaths.
Whereas, at around 10 a.m. on June 2, 1971 the offender Delwar Hossain Saidi aka Delu committed crimes against humanity by leading a group of collaborators and accompanying the Pakistani Army to the Hindu neighbourhood of Umedpur village on the eastern side of Tengrakhali village. They surrounded the village and forcibly entered every home, collecting cash, gold jewellery and valuables and burning the houses in order to force the people out. The offenders captured some of the villagers and tied them to coconut trees, torturing them and then shooting and killing them.
Whereas, the testimonies and information gathered provide preliminary proof that Delwar Hossain Saidi aka Delu and others committed crimes specified under Section 3 (2) of the International War Crimes Tribunal Act in different parts of Pirojpur Zila in Bangladesh.'
'it is imperative that this individual be arrested/detained under Section 11(5). There are legitimate concerns that if the offender remains at large then there may be damage to the testimonies, and investigation work may be hindered, and that this individual may go to into hiding or possibly flee the country; therefore in the interests of justice, the honourable Tribunal is requested to pass the necessary order to arrest/detain the aforementioned offender in order that the Investigation Agency can discharge its responsibility effectively, and/or the honourable Tribunal may pass any other order as it deems it fit and proper.'In a supplementary application - following a request from the Tribunal for further details as to why the his detention was necessary for effective investigation - the prosecution added the following:
"Maulana Delwar Hossain Saidi aka Delu is an extremely influential individual, if he remains at large it will not be possible to undertake an effective and proper investigation into the offences he is accused of under Section 3(2) of the 1973 International War Crimes (Tribunal) Act. Additionally, an effective investigation will be hampered by him and there is a strong possibility that testimonies and evidence will be destroyed, and that a he may may go to into hiding or possibly flee the country. Therefore in the interests of justice, the honourable Tribunal is requested to pass the necessary order to arrest/detain the aforementioned offender in order that the Investigation Agency can discharge its responsibilities effectively, and/or the honourable Tribunal may pass any other order as it deems it fit and proper."The prosecutor in court stated that an investigation was being undertaken and meeded time. The Tribunal Chairman said that Sayedee had not been formally charged, 'what is going on with this investigation, how long will it go on?'
The prosecution did not respond with a particular time period but said that the investigation was going on.
The Tribunal Chair then said that the court 'minded not to allow detention for indefinite period and expected prosecutor to act accordingly.'
Tajul Islam then stood up and spoke for Sayedee. He said that section 11(5) of the Act in no way authorised the issuing by the Tribunal of a warrant of arrest as can only do so once charged. There is no investigation report 'In absence of investigation report there is no question of framing of charges.'
He said that in reply to the defence application, 'there is a simple denial, In respect to any of the law points the prosecution have not replied.' (This is in fact correct; the prosecution states in its response: - 'Whereas, the Prosecution has no comment to make on clauses 1, 2, 3, 5 and 9 of the application. Whereas, the views expressed in clauses 4, 6, 7, 8, 10, 11, 12, 13 and 14 of the application are incorrect, the Prosecution rejects these.'
In relation to the supplementary application, Tajul Islam made some additional points:
- he was a world islamic scholar,
- he was not a political leader with no political influence of power
- no evidence that he was tampering with witnessses
- the prosecution has a motivated and ulterior motive for his prosecution.
- the prosecution have used an alias, Delu, which Sayedee has never been known by
- the investigation officers allegations are vague
- no evidence that Sayedee is creating any obstacle.
- the amendment of the rules has just been brought in to deal with the lacuna in the law
- in media reports that statements are only being taken from ruling party people
The prosecution responded by saying that the defence lawyer was being 'comtemptuous'. His submissions cannot be sustained. As a spiritual leader Sayedee could have influence. The investigation was free and fair. Noone was influencing it.
The Tribunal chairman said that there is no specific allegation against Sayedee. The prosecution response that there were specific allegations. The tribunal chairman was also asked whether any obstacles had in fact been placed in the way of the investigation. The prosecution responded by saying that there was a chance this could happen.
The Tribunal chairman then read out his order (not word for word).
"This is an application filed by prosecutor for the issuing of warrant of arrest against the accused person, Delwar Hossain Sayedee, alia Delu, during the investigation of the case. It has been submitted by both sides that that he is in custody in relation to some other cases. Prosecutor Haider Ali appeared for the prosecution. He said that DHS is an influential person of locality, who is a renown orator who can influence people by speeches. According to the prosecution, DHS has got power to influence people. Moreover it was submitted that investigation agency is investigating the case regarding his involvement in the offences. They have submitted report to the prosecution and this is annexed to the petition. Alleged that DHS was involved in offence under section 3(2) of the International Crimes Tribunal Act 1973, and the Investigation Agency has submitted that he should be detained in custody whilst investigation is complete.
On the other side Tajul Islam appears for the accused with a petition praying that the Tribunal not issue a warrant of arrest against the accused. They also submitted that that DHS was a very influential person and orator and poltical leader of the country.
Tajul Islam submittted that prosecution has not brought any statements to support detention of DHS for investigation. Tajul Islam also submitted that prosecution is acting against him in a male fide manner. Also submitted that under the law, the Tribunal cannot issue a warrant of arrest as the 1973 Act does not authorise it.
We have already ruled that under rule 9(1) of the rules this Tribunal has got the authority to issue a warrant of arrest at any state of proceedings if statified that necessary for effective investgation.
Both sides admitted that accused person is influential person of country. ....
At this stage minded to pass an order directing accused person to be detained in jail for limited period.
Amended rule 9(4) states that if a person is already in custody for offence under the Act and the tribunal is satisfied that detention order is necessary, they may issue a production warrant.'
We are of the view that a production warrant be issued under rule 9 ordering him to be detained until 29 December 2010.
The Investigation Agency is directed to continue investigation against him and submit report by 23 December 2010 about status of investigation or submission of formal charge.
If formal charge not submitted, and if report submitted, we will then consider whether order of detention is extended or not.
The application by the defence not to issue a warrant of arrest is thus disposed of. As regards application by accused to executive a letter of authority, this has not been pressed."