This application was dealt with briefly at the end of the hearing on 27 March (see blog) and adjourned till the 5 April.
Mr Sayed Rezaur Rahman moved the petition regarding Matiur Rahman Nizami and Zead Al Malum moved the application for Mujahid. They both argued that these two men have committed serious crimes and that the prosecution had different kinds of evidence against them to show that they were members of the Al Badr, and Razakers. They both said that the evidence includes all the evidence set out in section 19(1) of the 1973 Act, namely, 'reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings.'
They said that they were seeking 3 days of remand under Rule 16(1) of the Rules of Procedure which states: The Investigation Officer if thinks it necessary, may apply through the Prosecutor to the Tribunal to commit the arrested person(s) in his custody for the purpose of interrogation and the Tribunal can pass order for such custody of the person(s) arrested, for a maximum period of three (3) days if it upon
consideration of facts and circumstances of the case is of opinion that for proper
investigation such order is indispensable.'
When asked by the Tribunal why the interrogation should not take place in the jail, or at the jail gate, Malum said that it was not possible to interrogate them at the jail gate because they needed to show videos, documents etc. 'It will take time,' he said.
He said the government had allocated the house - No 405 (old) and 20/A (new) - in Dhanmondi Road 27 as a 'safe house' for the interrogations to take place and this have been gazetted.
He also pointed to section 8(4) of the 1973 Act which states that, 'Any Investigation Officer making an investigation under this Act may examine orally any person who appears to be acquainted with the facts and circumstances of the case.' (Please note that the some of the detail of the prosecution case for interrogation is missing here. It will be subsequently added.)
Tajul Islam, responded on behalf of Nizami by stating that 'the application for committing Nizami to the custody of the investigating agency for the purpose of interrogation has been filed in violation of Rule 16(1)'
Rule 16(1) states that ‘The Investigation Officer if he thinks it necessary, may apply through the Prosecutor to the Tribunal to commit the arrested person(s) in his custody for the purpose of interrogation and the Tribunal can pass order for such custody of the person(s) arrested, for a maximum period of three (3) days if it upon consideration of facts and circumstances of the case is of opinion that for proper investigation such order is indispensable.’
Islam went onto say that under rule 16(1) of rules of procedure, the ‘Investigation Officer is required to form an opinion as to the necessity of interrogating the Accused … This opinion is required to be formed objectively on the basis of documents and evidence. … There must be material or evidence before the Investigating officer to form an opinion as to the requirement of the interrogation. However, no documents, materials or evidence were identified or specified in the application on the basis of which the Investigating Officer has sought custody.’
Islam added that, the prosecution 'has merely made general allegations in the application which are not supported by any materials or evidence. The application does not refer to any document, material, evidence or witness which has necessitated the interrogation … As such, the application under Rule 16(1) of the Rules is without any factual or legal basis.’
The defence lawyer argued that, the Tribunal is required to be ‘satisfied that for the purpose of proper investigation, interrogation of the accused is necessary and further that such interrogation is necessary in the custody of the Investigating Officer. However in the facts and circumstances of the case there are no materials or records on the basis of which the Tribunal may be so satisfied.’
The lawyer said that the ‘Application does not disclose any materials that indicate that the interrogation of the Accused is necessary for proper investigation. … There is no reference to any documents or witness in such general allegations. It is clear that the said application is merely a fishing expedition. Hence, the Tribunal does not have any evidence or material before it for the purpose of concluding that the interrogation of the Accused No.1 is indispensable. ‘
He also stated that ‘The Application also does not disclose as to why interrogation of the accused is necessary in the custody of the Investigating Officer. The Accused may be interrogated in the custody of the jail authority - either within his cell or at the jail gate. There is no statement or explanation as to why interrogation of the accused in his cell or at the jail gate will not be equally efficacious and appropriate.
He also said that the power set out section 8(4) of the 1973 Act related to witnesses not accused.
He said that the prosecution can put everything on a laptop, like films etc, and bring it to the jail where interrogation could take place
He asked the Tribunal, 'Where is the formal opinion of the Investigation Officer? There is no report.'
The prosecution, he said, just want to take him into custody for their 'sweet wish'
Islam said that it was a recognised principle that the defendent's lawyer 'should be present during interrogation'
Advocate Munshi Kabir then got up and responded on behalf of Mojahid, making the same basic points as Islam. 'In the whole of the application filed with the lordship, you will not find any specific documents justifying need for interrogation. At least your lordships need to see documentation from the investigation agency'
'No evidence has been shown that establishes a fact of the case' he said. 'No statement that is admissible in court. No data or facts have been shown'
He told the Tribunal, that 'If you think that interrogation is indispensable then you should pass an order.'
The Tribunal chair read out the following ruling:
"Two applications have been filed by the prosecutor praying for allowing a prayer made under Rule 16(1) of the International Crimes Tribunal Rules of Procedure 2010. These two petitions relate to accused Matiur Rahmen Nizami and Ali Ahsan Mohammad Muzhaid who are now in custody in connection with a case under section 3(2) of the International Crimes Tribunal Act 1973, and pray for taking into the custody of the Investigation Agency for interrogation. As both the petitions relate to the same relief, those are taken up together for hearing and disposal.
Mr Sayed Rezaur Rahman, the learned prosecution moved the petition regarding Matiur Rahman Nizami and Zead Al Malum, the learned prosecutor moved another petition regarding Mr Ali Ahsan Mohammed Muzahid while Mr Tajul Islam, the learned counsel appeared for accused Motiur Rahman Nizmai and Mr Munshi Ashaan Kabir the learned counsel appeared for accused Ali Ahsan Mohammad Muzahid.
We have heard both the prosecutors and both the counsels for the defence. It is submitted by the learned prosecutors that for proper investigation of this case two accused should be committed to the custody of the investigation agency for the purpose of interrogation and for that matter the government has by gazette notification declared a specific house situated at Dhanmondi as a safe house. He further submitted that the material which have been collected by the prosecution are required to be examined by interrogating the said two accused persons. He further submitted that some reports, photographs, newspapers, periodicals, magazines, films, and tape recordings have been collected by investigation which will connect two accused persons with the offences in question and for testing them, they are required to be interrogated for making an effective investigation. He further submitted that the investigation is at the fag end stage and if this prayer is not allowed then the Investigation Authority will be prejudiced and as a result the whole investigation will be defective and incomplete. As such they prayed for committing the accused persons to the custody of the Investigation Agency for proper investigation.
On the other hand, Mr Tazul Islam and Mr Munshi Ahsan Kabir, the learned counsel for the accused person submitted that those accused person are in custody by the order of the Tribunal from early August, last year and 8 months have already been elapsed and at the fag end of the investigation it is not all all necessary for the investigator to take the accused persons in their custody for interrogation. It is further contended by the learned counsel that if this prayer is allowed then the accused person will be highly prejudiced as they may be ill-treated by interrogator. Moreover it is submitted by the learned counsels that the alleged safe house at Dhanmondi is not safe place for the accused on the point of security and as such the prayer for taking custody of the accused person in the hands of investigators should not be allowed.
We have heard both the sides and given our anxious thought regarding the matter. We are of the view that the ends of justice will be met if the prayers of the prosecution are allowed with some modification mentioned herein. The petitions are allowed and the accused persons be committed to the custody of the Investigation Agency inside the Dhaka Central Jail for a period of one day only that is from 10 am to 5 pm for each accused person. The Superintendent of Dhaka Central Jail is directed to arrange a special room for interrogation within the knowledge of the engaged counsel for each accused person who is permitted to be present at the adjacent room where the interrogation will be held. The learned counsel will not be allowed to hear the interrogation but must be allowed to see the accused person at the interval time of such interrogation. Two separate dates must be found and fixed for interrogating the two accused persons separately. The investigation Agency will inform the Supt of Dhaka Central Jail and the counsel of the accused persons before about the date and time of each interrogation.
The petitions are allowed with modification mentioned above.
Let copy of the order be sent to the Supt of Dhaka Central Jail for information and necessary action. Copy thereof also be sent to the investigation agency and the defence counsel.
1. The Tribunal's decision that the interrogation should take place whilst remanded in the custody of the investigation agency inside, rather than outside, this is a positive order, which along with the decision to allow Alim bail (See blog) suggests that the Tribunal may finally willingly to act in a more independent manner than previously.
Interestingly, not mentioned in the proceedings (though it was in subsequent hearings) was a 2003 High Court order than had, in relation to the ordinary criminal justice system required the magistrates to order interrogations to take place inside jail.
This order has effectively been ignored by the courts - and by the police who constantly seek people to be interrogated in their custody. The High Court order also had directed the Jail authorities to build proper facilities for jail interrogations - which has again been ignored.
So this order reflected what the High Court had ordered 8 years ago.
The question of where the interrogation takes place is significant in Bangladesh, as the police routinely torture detainees when they are remanded in their custody (the High Court specifically mentioned this as one of its rationales for the ruling). In the context of this Tribunal - as torture was unlikely to occur (though, of course, who knows) - a decision not to allow the accused to be remanded in police custody is probably more of symbolic than real significance. However, the decision shows signs that the Tribunal will not simply proceed agreeing to the prosecution applications (which it has in the past).
[NB: Unfortunately, this order was subsequently revised by the courts to allow interrogations to take place outside jail, see blog)
2. However, it again needs to be noted that there was a serious failure in the way in which the Tribunal set out its decision making in its order.
The order for interrogation was given under section 16(1) and a plain reading of this does require that the Tribunal, at the very least consider that placing the accused in the remand of the investigation officer is 'indispensable' (nb: the accused are remanded with the investigation officer for the period when interrogation takes place, though it is inside the jail).
In its application, the defence argued that there was no evidence given to the Tribunal to allow it to make a judgment as to whether remand was indispensable or not. It also argued a number of other points regarding what was required by section 16. In its ruling, the Tribunal simply does not refer to any of these arguments at all. It does not even say that in its view interrogation is 'indispensable', yet alone the reasons for considering it to be so.
The Tribunal must start engaging with the defence's detailed arguments and not simply ignoring them. Of course the Tribunal may feel that it can ignore them as none of these orders can in any case be challenged - see Section 21 of the 1973 Act. The poor reasoning given in the order is of course a very good reason why interlocutory appeals should be introduced.