28 Oct 2010: Tribunal Rules Amendment

On 28 October 2010, the Tribunal published an amendment to its rules - the “International Crimes Tribunal Rules of Procedure (Amendment), 2010.”.. You can see the Tribunal's original rules here.

One of the objectives of this amendment appears to be an attempt in part to deal with criticisms, argued by the defence, that the Tribunal did not have the power to issue an arrest warrant against a person who was not charged with an offence. The defence had argued that section 11(5) of the International Crimes (Tribunal) Act 1973 only allowed the Tribunal to issue a warrant for the arrest of a person who had been 'charged' with an offence - and that rule 9(1) of the Tribunal's rules which allowed the Tribunal to order the arrest of a person if it considered that it was "necessary for effective and proper investigation", was ultra vires. (To read more about this issue, see this blog) and also point 3 of this blog)

In support of its argument, the defence had pointed out that the warrant for arrest (set out in form 3 of the schedule to the rules) referred to a person 'charged' with an offence under the Act and the production warrant (form 4) referred to a person being asked 'to answer to a charge'.

The Tribunal had ruled relating on 21 September 2010 in relation to defence arguments relating to the Nizami, Molla,  Kamruzzaman and Mojahid that it did have the power to issue an arrest warrant without a person being charged - but gave no reason for this, and the Tribunal did not in court refer to the problem of the wording in the warrants. (see points 3 of blog referred to above)

The new amendment changed the wording of these warrants so that the Tribunal could  issue a warrant against an 'accused' person - and not just a person charged. The definition of the word 'accused' was also changed. In the original rules it was defined to mean the "person against whom formal charges is submitted before the Tribunal" and in the new rules it was defined to mean a person "whom an investigation of an offence under the Act has been started.”

These changes don't deal with the overall criticism of the use of rule 9 to arrest a person, but it does remove some of the points that supported the defence's position.

The amended rules also dealt with another problem in the original rules (not brought up by the defence) that Tribunal had no clear power to order the production of a person, who was already arrested and detained in relation to another offence, to the Tribunal. Rule 9(1) only refers to issuing a warrant of arrest - not appropriate for a person already detained. A new rule 9(4) has therefore been introduced which states that:

“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.”

These amendments do raise questions about the legality of the production warrants issued prior to these amendments - in relation to first four Jamaat detainees. Tribunal decisions however cannot be challenged.