Sayedee was produced before the Tribunal. The Prosecution then submitted six volumes of case diary and investigation material - said to total about 3000 pages - to the tribunal. This was done subsequent to a previous order of the tribunal (see blog) the tribunal then adjourned the hearings to look at the papers.
During this adjournment period, the lawyers for Sayedee make the following claims: that Mr. Sayedee was taken back from the dock. His son wanted to give him some dry food (sandwich, biscuit, apple & water) as Mr. Sayedee was a diabetic patient and needed to take food which he was unable to do so during the long journey from jail. The police did not allow this, and so the lawyers sought the Registrar’s permission. The registrar checked with the Chairman of the tribunal over phone and it appeared to the Jamaat lawyers that the chairman was not willing
to allow the food to be given but asked the lawyers to file a written application for the food. the lawyers wrote a short application.
After about an hour's adjournment, the tribunal resumed its proceedings and the defence lawyers filed an application for food. The tribunal allowed the application but directed the police to only allow the accused to take food after the court has concluded.
Advocate Haider Ali, for the prosecution, pressed its application to extend the time of the detention order of Sayedee until its investigation was complete.
Ali said that it was not possible to investigate the matter within a short period of time due to the large range of crimes against humanity committed during the Liberation War.
"We need more time to examine the photos, videos, newspaper clippings, books and other information," he said.
He added that more time were also necessary to locate witnesses who have changed their residential addresses.
“Sayedee's involvement in the 1971 crimes was initially proved. He helped the Pakistani soldiers and torch several villages during the independence war. If he is set free, he can influence the investigation against him. He should be kept in detention for the interest of justice,” Ali is reported to have said.
The defence then pressed its bail application with Tajul Islam reading out the bail application.
- Petitioner has been detained in custody since his arrest on 29 June 2010. This has been over eight and half months.
- ‘There are no reasonable grounds for believing that the Accused-Petitioner has committed the offence with which he is charged’. He has ‘still not been formally charged of any crimes’.
- That by an order dated 29 December 2010, the tribunal directed the Investigation Authority to complete its investigation of the case by 15 February 2011 and submit a report to the Tribunal. However, on that date, the Investigation Authority filed the same investigation report submitted earlier on 14 December 2010 and prayed for further time to conclude the investigation and also for a direction to extend the detention order until the investigation is concluded. There was no progress of investigation in this period which was why on 20 February 2011 the Tribunal directed the Investigation Authority to submit its case diary before the Tribunal to show the progress of investigation.
- The ‘Investigation Authority has failed to exercise due diligence in investigating this case and even after nearly nine months, the Prosecution has failed to establish a prima facie case against the Accused-Petitioner. Without a formal charge, there can be no reasonable grounds to believe the Accused-Petitioner committed crimes under the Act and should be detained without bail.’
- the Investigation Authority has alleged that the accused should be detained in jail custody for the following reasons: He may abscond;he may interfere with the witnesses and use his ‘armed cadre force’ to interfere with witnesses; the witnesses are in fear of their security as a result of threats made by the ‘armed cadre force. The witnesses have filed six General Diaries in Pirojpur Sadar and Zianagar (Indurkani) Police Stations; he may interfere with the investigation process through his ‘armed cadre force’ in Pirojpur; he may destroy evidence relevant to the case; there is a possibility of an increase in terrorism in Bangladesh that may destabilize the country
- the accused will not abscond because he is seventy-one years of age and of ill health. He has been a diabetic patient for the past thirty-five years as well as suffering serious heart problems and chronic arthritis in his neck, upper limbs, waist and knees. ‘He is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from Tribunal. He is also willing to comply with a residential condition to reside at his address at 914, Shahidbag, Dhaka 1217 whereby his presence can be regularly checked and monitored. He is he is willing to report to the local police authorities on an agreed regular basis. ‘
- He ‘is unlikely to continue or repeat commission of offences if enlarged on bail’. He is an internationally reputed Islamic scholar. He has given religious teachings for 50 (fifty) years. The people of Pirojpur have twice elected him as Member of Parliament in 1996 and 2001. He has no previous convictions. Due to his age and ill-health is highly unlikely to commit any crime.
- There is no risk of an increase in terrorism in Bangladesh should the Accused-Petitioner be granted bail. He has publicly criticized acts of terrorism in his religious preachings.
- The accused is unlikely to tamper with witnesses or evidence. There is no evidence that the accused has any connection to an ‘armed cadre force’ and as a result no threats have been made to any witnesses. With respect to the six General Diaries filed at police stations, it is submitted that in General Diary No. 1239/10 dated 26 August 2010, the Pirojpur Sadar police station submitted a report on 21 September 2010 before the learned Senior Judicial Magistrate in Pirojpur. The police report stated that there was no evidence concerning the allegation of threats made and as a result the arrested individual was released on 23 September 2010. With regard to the remaining five general diaries, though they were filed 7 to 10 months ago, the police have not submitted reports. Also, the accused is willing ‘to undertake that he will not travel to any crime-base areas without prior permission from the Hon’ble Tribunal. He is also willing to undertake not to contact any Prosecution witnesses or to interfere with the investigation process.’
- The Accused-Petitioner has been in custody for a long period and trial is not likely to conclude within a reasonable time. Since being detained on 29 June 2010, the accused has not been served with any specific allegation of crimes committed under the Act. It is unforeseeable that the Prosecuting Authority will bring charges against the Accused-Petitioner in the near future. It is therefore respectfully submitted that there are no lawful grounds to continue or extend the detention of the Accused-Petitioner.
- There is an international obligation to grant the right of bail to the Accused-Petitioner. Article 9 (1) of the International Covenant on Civil and Political Rights (“ICCPR”) states that “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law (emphasis added).”; that Article 9 (2) ICCPR states that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons of his arrest and shall be promptly informed of charges against him (emphasis added);” tat under Article 9 (4) ICCPR: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement (emphasis added).” Article 60 (4) ICC: “The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions (emphasis added).”
- The accused has been subject to arbitrary detention. He has been detained with out being promptly informed of any formal charge in breach of Article 9 (2) ICCPR and Article 60 (1) ICC. This continued detention without charge is a product of delay on behalf of the Prosecution as stipulated in Article 60 (4) ICC.
- The Accused-Petitioner should be granted bail to seek urgent medical attention. The accused is an elderly man who suffers from a number of health problems. He has been a diabetic patient for the past thirty five years. He requires regular medical assessments to ensure that his blood sugar level is kept under control. Since being detained on 29 June 2010, the penal authorities have consistently failed to test his blood sugar levels and have failed to provide adequate medical treatment. As a result the Accused-Petitioner’s blood sugar levels have risen to such an extent that his diabetes is no longer under control. This has led to the exacerbation of existing health complaints in his prostate gland, eyes, foot and other parts of his body. These are all common complaints for a diabetic patient.
- The accused suffers from serious heart disease. He has two rings in two arteries of his heart and blockage to the extent of 75% and 85% in two other arteries of his heart. He has complained of serious pain in his heart and requires immediate medical attention. On 14 January 2011 the Dhaka Central Jail authority had to call a cardiologist from PG Hospital to attend to the accused. The examining cardiologist advised that he should undertake a number of medical assessments/examinations.
- The accused suffers from chronic arthritis and experiences pain in his neck, upper limbs, waist and knees. Prior to his incarceration on 29 June 2010, he used to undergo regular physiotherapy treatment. However since his physiotherapy has been stopped whilst in custody, the level of pain has increased substantially.
- The accused has been transferred five times to four different jails over the course of seventeen days. On 20 January 2011 the Accused-Petitioner was transferred from Dhaka Central Jail to Munshigonj Jail. On 30 January 2011 the Accused was taken on a four-hour journey after midnight and transferred to Gazipur District Jail. On 5 February 2011 the Accused-Petitioner was taken from Gazipur District Jail and transferred to Dhaka Central Jail. The following afternoon on 6 February 2011 he was transferred to Kashimpur Jail. At 20:00 the same day he was again transferred to Gazipur District Jail.
- The accused has yet to receive any medical assessment or treatment with regards to his heart problems or diabetes at any of the jails in spite of the medical advice given on 14 January 2011. The frequent transfer from one jail to another has considerably aggravated his existing medical health complaints.
- The accused is willing to comply with the following conditions for bail: surrenders his passport before the competent authorities; does not apply for any travel documents without the prior permission from the Hon’ble Tribunal; resides at 914, Shahidbag, Dhaka - 1217; reports to an agreed local police station on an agreed regular basis; does not travel to any crime-base areas without prior permission from the Hon’ble Tribunal; does not contact any of the Prosecution witnesses; does not interfere with any part of the investigation process.
- In addtion Mr. A. K. M. Mustafizur Rahman, Son of Late Moulvi Khalilur Rahman of 180/6/11 East Rampura, Dhaka – 1219, who is a family friend of the Accused is willing to provide surety of an agreed amount as a condition for bail.
The Prosecution strongly opposed the bail application and emphasised that if he was released the accused may influence the investigation process as he is an influential person and a renowned politician.
At one point according to media reports, the ribunal chairman Mohammad Nizamul Haque said that enough time had already been spent, and it seemed the prosecution panel was ''asleep". Haider Ali countered that they were not asleep, but working.
Following further submissions by Tajul Islam and by Haider Ali, the Tribunal chairman give his ruling:
That the accused is present in the dock, in accordance with the order passed by this tribunal. The prosecution has submitted six volumes of the case diary. We adjourned for one hour to look into the investigation materials and the case diary in our chamber.
On behalf of the Prosecution, Mr. Haidar Ali, submitted that their investigation is continuing and they need further time to complete the investigation. It appears from the investigation materials and the case diary that it will be completed within a short time and the prosecution may be able to file formal charges. Haider Ali further submitted that if the accused is enlarged on bail he will tamper with the evidence. He also submitted that some more time is required for investigation and submission of the formal charge and in the mean time the accused may be kept in detention.
The defense lawyer Mr. Tajul Islam has submitted that the prosecution has taken sufficient time for investigation. He filed a bail application to enlarge the accused petitioner on bail. He submitted that the Accused Petitioner is ready to comply with certain conditions for bail. He referred certain provisions of ICCPR & ICC in support of his bail application. He also submitted that the accused is an old man, a patient of diabetic and heart disease and arthritis and need to take medicine on regular basis. So he should be enlarged on bail.
It appears that the investigation is in final stage and the prosecution may file a charge sheet shortly. So some more time may be given to complete the investigation. But we are of view that that the accused requires full medical treatment. But if the accused is enlarged on bail the Investigation Authority may face some difficulty as the accused is an influential person. So we reject the bail application. We also direct the jail authority to arrange for necessary medical test and treatment of the Accused Petitioner. If required the jail authority have to arrange test in Bangabandhu Medical College Hospital (PG Hospital).
That the prosecution is directed to complete investigation within shortest possible time preferably within one month. If fails to complete the investigation then they have to submit progress report along with case diary. The court is adjourned till 20th April 2011 for further order. Prison authority is directed to produce the accused on that day.
Following the order, the prosecution lawyers said that they then tried to file an application for medical assessment in a private hospital in Dhaka. The Chairman replied that there is no need to file the application as he has already directed the jail authority to provide all necessary medical treatment to the accused.
The prosecution lawyers also said that they made an oral request to the tribunal to transfer Mr. Sayedee to Dhaka Central Jail as all his cases are pending in Dhaka (he has a number of cases other than those dealing with war crimes) and the long journeys to attend the courts make him suffer. The tribunal said that it does not have the power to give such a direction and advised the lawyers to make necessary application before proper authority.