On arrival at the Tribunal in the morning, I was stopped by Hasina Quader Sinha, the sister of SQC who said that she and her brother Saifuddin Quader Chowdhury, had not been allowed entry into the court. She also said that her lawyers had also not been allowed in - and in front of the court there was a group of lawyers, including Tajul Islam (the lawyer for six Jamaati defendents) and Nitai Raoy Chowdhury whom the lawyers said was their 'head lawyer'.
It turned out that four family passes had been given to the family (two daughters, a sister in law and a brother in law) but not to any others, which explains why they were not allowed into the Tribunal. It also was clear when I arrived in court that many of SQC's lawyers were in fact present in numbers - including Fakrul Islam who had represented him at the first hearing on December 19th, and who was clearly his main lawyer.
Initially, the guards at the door to the building also tried to stop me entering, but I was noticed by some officials inside and allowed to enter. Unlike normal, there was no table in the entrance to the Tribunal building to allow people to get their passes, but I found the relevant person in one of the inside rooms who gave me a pass to the court.
When I went upstairs and entered the court room, I realised the reason for the difficulties. The court was totally full with standing room only. However, the balcony area that overlooked onto the court was completely empty.
I was surprised to see the Attorney General present - along with a number of lawyers from his office. The Attorney General had never attended any previous hearing.
SQC was in the dock, standing up.
As I entered, and found a place to stand on the side, the Tribunal Chairman was in full flow. I had missed the very beginning of the Tribunal so was unclear what had happened earlier but it appeared that they had been some kind of trouble with more defence lawyers trying to enter the court than there was space.
It should be noted that although only one or two defence lawyers actually speak there are always very large numbers of them - perhaps as many as twenty or thirty. [When I spoke later to the lawyer Daniah Kader Chowdhury (a daughter-in-law of SQC) she said that there had to be a lot of defence lawyers as a 'show of force. The prosecutors come out in force, so we need to do the same.' She asked why it was necessary for the AG and his lawyers to be present when there was already a prosecutor's team, and that if defence lawyers were to be limited in number then so should the prosecutor.]
The Chairman was speaking in a pretty loud voice, in part Bangla and part English. "We have come here to do a certain duty which is upon our shoulder. What has happened today was unthinkable. We are all lawyers and we must work together. We are all new at this. The Tribunal is new the prosecutors are new the defence lawyers are new. Let us help each other to do justice,' he said
The AG at one point said, 'Can I suggest that the Judge should fix the maximum number of defence lawyers. The defendent should be asked to name who he wants to be his lawyers. The lawyers chosen should then be given an ID card with a photograph so that they can enter the court. This is what happened to me. I had to get a photograph and was given an ID card.'
He also apologised on behalf of all lawyers for what happened and also raised issues about the security in the court building and in the area around the court.
The Tribunal Chairman (TC) then brought that discussion to an end, and the defence lawyer started to stand up.
There then following a disorganised exchange between SQC himself and the Tribunal Chairman.
SQC said that 'I have not had access to any lawyer since I was detained.'
The TC said 'that maybe. You will have your time to speak later.'
SQC went on; 'I have not been able to instruct any lawyer. I have rights to a lawyer under the constitution to a lawyer'. He referred to a number of sections inthe constitution including Article 107.
The TC said 'We can assure you that you will be able to take instructions from a lawyer.'
SQC said, 'You are a judge of the supreme court. You have taken oath to protect the constitution. I have not even been able to instruct a lawyer.'
The TC said, 'You will be able to'
The TC then asked Fakrul Islam, SQC's lawyer, to explain the situation.
Islam said that no lawyer had access to the jail, but that on the 15th December, before he was detained he had signed a power of attorney (known as a wakalat-namah). Since then he had not signed one
The TC then said that if there is no legal wakalat-namah, the tribunal should be adjourned
Islam said that two lawyers had tried to go to the Jail to get a wakalat namah, but they were denied entry and the documents were not allowed to be signed.
The Tribunal chairman said that, 'You are a lawyer, you can take relevant action to deal with this'
Islam said this was exactly the reason why he had registered a petition this morning with the Tribunal. He said that both lawyers and family has been denied access to the jail.
The TC said that the court can't continue as the defendent had not given any instructions to the lawyer. 'He said in open court that he has not instructed a lawyer,' the TC said.
Islam then said , 'In that case allow the defendent to speak for himself'
SQC then said, 'I am pleading for myself. Let me speak.'
The TC refused to hear anymore from SQC and then started dictating an order. (nb: this is not a word for word record of the order.)
"At the beginning of the proceeding today, SQC, the accused, said that he could not execute the legal wakalat-numah to engage counsel to represent him in the Tribunal. He also said that he could not give instructions to anyone. On inquiry by the Tribunal, the lawyer Fakrul Islam said that the wakalat-numah that he received was given to him when SQC was a free man. Upon hearing this we feel that Mr Faqrul Islam or any other advocate should be allowed to properly exchange wakalat-numahs with SQC and we are also of the view that that proceedings should not process further today so that proper steps could be taken by SQC in this respect and the matter should appear on the list on 17 January. In the meantime the jail authority is directed to assist SQC to execute a wakalat-namah if he wishes to do so. .... Let a copy of the order be sent to the jail authority, and that SQC be sent to jail.'
SQC then interjected. 'I have not seen my family. I have had no food for 15 days. I need to have access to my lawyer.'
The TC then added the following to the order:
'Mr SQC has informed the Tribunal that he wants access to advocates so he can give proper instruction to them. the Jail authority is directed to do the needful according to the jail code.'SQC then said, 'What about my family. Let me meet my family.'
The TC said that this issue, 'should be dealt with by the jail authority,' not including any direction in the order.
The Tribunal members then rose and left the court.
Following the exit of the members, I asked the Attorney General what was his view about the jail authorities not allowing the defendent access to lawyers. He said, 'We only know what the accused has said. It has to be ascertained by the jail authority whether what was said was correct or not.'
SQC then remained in the dock for sometime. He spoke to his lawyers and talked intermittently to journalists, holding forth at times. In this period he made the following points: 'I have been beaten black and blue. I have had no access to legal books. My papers were taken away from me before I came to the Tribunal. This is supposed to be a constitutional court, but it is a Karzai court. I am being denied my rights under the constitution. I have been a member of parliament of 32 years. I was beaten both in police custody and jail.'
I spoke briefly to Fakrul Islam, his lawyer, who said that he had gone to Narayanganj jail on the 23rd December, then on the 25th and then on three consecutive days after that, and that each time he was denied access to the jail. 'I said that I was the lawyer of his choice, but I was refused entry to the jail.'
His daughter in law, the advocate Dania Kader Chowdhury said that SQC was taken to Narayanganj jail on 23rd December, and that he met SQC as a member of the family on that day. 'After than no one has been allowed to see him, although in the jail code it says that a person should be allowed to see his lawyer every day.' I said to him that despite the allegations of torture he seemed quite well, and she said that he had seen his foot, and that the 'nails had been taken by pliers.' Of course it is not possible for me to verify these allegations which have been well publicised in the media.
This was the Tribunal very far from its best. It heard allegations that the jail authorities had not allowed the accused to see a lawyer, and that they had refused to even allow the accused to sign a power of attorney. These claims were made both by the accused and by his lawyers. On hearing this - quite serious possible breaches of due process - the Tribunal neither sought details of these claims (i.e by finding out details of when the lawyers are supposed to have tried to access the jail etc etc) nor asked for any explanation from the jail authorities, nor take any other steps to determine the truth or otherwise of the claims.
Instead, the Tribunal used this apparent breach of the defendent's rights, to further adjourn proceedings for a period of 18 days.
Furthermore although the Tribunal heard that the family had been refused access to the accused, the Tribunal neither made any enquiries nor passed any order to the jail authorities to ensure that in the future the family could access the defendent.
A key role of the Tribunal is to protect the rights of the defendents - and when it hears claims that these rights are being breached, one would expect that some action be taken to enquire into their accuracy, and take appropriate action. In the Tribunal today, it seemed not to appreciate at all that it had this role.
Moreover the further long adjournment of the Tribunal, again delaying the defendent's application for bail, is very difficult to justify. It remains unclear why an adjournment of just one or two days could not have been given. The tribunal did not ask the defence lawyers how long an adjournment they would need to obtain instructions from the accused.
Also notable was that SQC did not raise with the Tribunal any claim that he had been 'tortured' or abused whilst in prison - though he did mention that he had not been provided proper food.