The hearing related to (a) application by prosecution team for an order directing the continued detention of Maulana Delwar Sayedee (MDS) whilst the investigation into allegations that he committed war crimes in 1971 continues and (b) an application by the defence for bail.
It started with the Tribunal seeking a correction of the prosecution application which had stated that it was Misc case not 2 when it was Misc Case no. 3
The prosecutor, Syed Haider Ali presented the report on the progress of the investigation. He said that the application set out reasons why the prosecution could not complete the investigation and needed more time. He referred to various parts of his report.
The Tribunal interrupted him at one point saying that the prosuction has not given any indication of how much time needed to complete investigation.
The prosecution replied that they were 'actively invstigating. It is a proper investigation, and objective investigation.' He also referred to the more recent BDR massacre and stated that, unlike that, the offences now being investigated took place many years ago.
Tajul Islam stood up and spoke on behalf of MDS. He said that Sayeedee is a respoected citizen of the country, and MP for Pirajpur and that he has been detained since 29 June 2010.
He said that the prosecution had been directed to complete the investigation by 23 December and submit report on how it has proceeded.
He said that the investigation had not been completed. The Investigation officer is seeking further time. 'Since the IO has not completed invetgation he should not be allowed to extend the investigation time whilst the accused remains in jail.'
He said that there was no prima facie case against the accused. No ground for detention. No charge under section 9. The accused petitioner has been in jail for a long time. There is no specific allegation against him. The allegations against him are 'vague, and hypothetical' There are no reasonable ground for him to be convicted, so he should get bail. Failed to show substantive risk of interference with investigation. Bail is a right. No possibility of absconding as willing to hand over passport, and report to police.
Specifically in respect to the prosecution's argument stated that:
- MDS is not 'operadi', not accused, but defendent.
- all allegations re absolutely vague. They are only 'allegations' He said, 'If these allegations are not vague I dont know what is vague.'
- detention is not at all necessary
- it is clear that this is a political prosecution. Not justice. It is to take down the political opposition. This is not to do with prosecuting people for offence under the 1973 Act but against a political party.
He then want through provisions of the legislation of other Tribunals. He quoted rule 65 of the ICTY and rule 119 of the ICC setting out what kinds of conditions can be imposed by the Tribunal, and showing that there are clear provisions for bail.
He said, 'We agree that there should be trials of war criminals. No one should be spared. We are willing for any conditions to be imposed upon teh accused. He is a political leader, an old man, unwell.'
The prosecutor was then given a chance to respond. The Tribunal chairman said that he needed to respond to (a) how much time invsetigation needed and (b) the conditions which the defendent lawyers had agreed could be imposed upon MDS.
The prosecution did not respond to these points specifically. He repeated many of the same points he had raised earlier and also argued that bail provision was not present in the 1973 Act
Tajul Islam responded. He said that where the law is silent, then international standards should be read in. The Act was written in 1973 and we are now in 2010
In relation to bail there is nothing mentioned in rules and in this situation need to read in international provision. Bangladesh is a signatory of the International Criminal Court.
he said, the main question is whether MDS release would be an obstruction to investigation. We are willing to be subjected to any condition.
Chief Prosecutor then stood up and said that Sayedee can not expect the right to bail as would end the prospect of prosecution. It is crystal clear that if enlarged would effect investgation. There are six general diaries against him.
After only a very short hesitation, the Tribunal chair read out this order. (nb: this is not word for word)
"The accused Maulana Delwar Sayedee (MDS), alias delu has been presented before the Tribunal by the authorities as directed. The prosecution has submitted a report stating progress of investigation. In previous order started that if they could not conclude investigation by 23 December 2010, they should submit a report setting out the progress.Comment
The prayer of the prosecution is for extension of time for investigation by keeping the accused in custody, and there are two applications filed by the accused - one for giving bail to the accused and the other for a direction upon the prosecution to disclose to the accused the report of the investigation agency.
At the outset Tajul Islam, the advocate for MDS, submitted that he has received copy of the report submitted by prosecution and such did not proceed for direction.
The prayer of the prosecution for extension of time for investigation and custody of the accused is taken up by Syed Haider Ali and in support of this he read out last part of report. Investigation of the case against the accused incumbent is going on and by now there has been the collection of many materials against him. It was further submitted that need more time to continue investigation and the collection of evidence inside and outside the country is going on and the investigation of the co-accused is also going on.
Also stated that require the examination of the accused, but no such prayer has been made for that.
Also stated that the they are examining more cases and that it will take some more time. Also submitted that the accused is a political person in country and if freed on bail may influence proper investigation in the case and also may abscond the country. Also said that 6 general diaries had been lodged in different police stations of Pirozpur for giving threat to witnesses and are being investigated, and as a leading politician of country should be directed to remain in custody until after the investigation is over. The prosecution could not state how much time needed to continue investigation.
Tajul Islam for the defence submitted that in the report submitted by the prosecution nothing has been stated about how much investigation has proceeded and how much needed.
On application for bail, Tajul Islam submitted that the accused is a respected person of the country. He is ready to comply with any condition imposed by the Tribunal. Also said that would hand in passport so that chance of leaving the country is negated. By referring to other Tribunals submitted that although there is no detailed rules relating to the bail in either the Act or the Rules, other tribunals state that accused should not be detained for indefinite period.
We have heard from prosecution and defence. Having considered the submissions, it is our view that some more time should be given to the prosecution to continue investigation and that prosecution is to complete investigation within 15 Feb 2011 and submit report. In case that failure to submit formal charges, then Tribunal will sit on 14 Feb and pass necessary orders considering an application for bail by accused. We are not inclined to allow bail to him at this moment. The prayer for bail is therefore rejected."
Yet again the order of the Tribunal was not reasoned. Having summarised the arguments, the order simply stated that, 'we are not inclined to allow bail at this moment.' It did not engage with any of the defence's arguments - and most specifically explain why adequate investigation could not continue if bail was provided on the basis of a series of conditions including relinquishing Sayedee's passport, ordering him not to travel to particular places, or not to take any particular actions. This was offered by the defence - and it has to be said seems pretty reasonable considering he has not been charged and has been detained for six months.
It is notable that although during the hearing the Tribunal chair sometimes does asks pointed questions to the prosecution, the lack of proper responses from the prosecution does not seem to impact upon the Tribunal's order. So the Tribunal asked the prosecution to respond to the defence's offer of bail conditions - but there was no specific response to this from the prosecution.
Also troubling is the speed at which the Tribunal gives its order after the arguments. There is almost no pause at all. There is no time for consultation with the other judges to discuss what has been said at the hearing. There seems little point in having the hearing if in fact the Tribunal has already made up its mind before hearing the arguments.