On 5 April, the Tribunal ruled, that Motiur Rahman Nizami and Ali Ahsan Muhammad Mujahid should be interrogated for one day inside Dhaka central jail, with a lawyer present in an adjacent room. The order was made in response to an application made by the prosecution that the two men should be remanded in the custody of the investigation agency for three days for the purposes of interrogation. See blog.
However, soon after this, the Tribunal received a letter from the superintendent of Dhaka Central Jail informing it that there was not sufficient space inside the jail to allow this interrogation to take place. The investigation agency also had been informed of the same thing when one of the investigation officers visited the jail authorities. As a result the prosecution applied to the Tribunal for the 5 April order to be revised so that the interrogation could take place outside the jail.
Rezaul Karim for the prosecution argued that an investigation officer, Mr Sanaul Huq had met with the jail authorities and been told that it was not possible to hold an interrogation inside the jail authorities, as there was insufficient space, and that this had already been communicated to the Tribunal.
The Tribunal chairman interrupted and noted that the jail authority had written about space at the 'jail gate' when the order referred to inside the jail. 'He should have said inside the jail there is no scope for interrogation. The order was not about the jail gave. We did not say jail gate,' the Tribunal chairman said.
The prosecution said that it was clear that, 'it was not possible to arrange interrogation inside the jail.'
He said that the government had, through a gazette notification on March 29, set up a safe house at House 20A on Road 27 at Dhanmandi to keep and interrogate war crime suspects remanded by the tribunal in the custody of the investigation agency and that the house was safe and well-furnished. It is secure and of international standard, he said.
The Tribunal chairman then referred to an 8 year old High Court order made on 7 April 2003 which had not, he said, been stayed by the appellate division. It was binding authority on the jail to create facilities for interrogation. 'This is the way our executive looks after the judgements of the High Court which is binding on them,' the Tribunal chair said.
Mr Munshi Ahsan Kabir, on behalf of the defence then got up and started to argue an application seeking adjournment on the basis that Tajul Islam was not present due it being court holidings. The Tribunal then said that since Kabir himself was there, there was no need for an adjournment.
Kabir then started to argue that the interrogation should not take place at the safe house. He argued that it was not enough for the superintendent of jail to 'indicate that there are no facilities at the Dhaka Central Jail available to comply with the order. The superintendent is required to take all possible steps to comply with the order.' He said that there is no indication in the prosecution application that the superintendent 'had made any attempt to arrange facilities for interrogation' - a failure that he claimed amounted 'to contempt of court ... an utter disregard for the orders and processes of this court.'
He also argued that the letter to the Tribunal from the jail authorities had not been shown to the defence and that the prosecution's own application doesn't explain why the jail superintendent formed his opinion that there were insufficient facilities.'
He also argued that it was not correct to say there were not sufficient facilities. 'There is an area demarcated within Dhaka Central jail for client conferencing. Such client conferencing takes place within the view, though not the hearing of CID officers' He also said that there were other rooms available and produced a rough sketch map showing the location of various rooms.
'The jailors room, deputy jailors room and the superintendent's rooms could be temporarily assigned as interrogations rooms for one day,' he said
He also argued that the two men were apprehensive of their safety as the house in Dhanmondi is unprotected and unguarded, with low walls and 'not capable of being adequately secured without structural changes.' He also raised questions about whether there would be adequate medical facilities in the house, and referred to the age of the accused.
He said that the prosecution's descriptions of the house as being of 'international standard' and 'secure' are stated without any basis. He said that a number of news reports had also written articles about the security of the safe house.
Mr Kabir then made a further application seeking an order from the Tribunal directing the investigation agency, prior to interrogation, to make full disclosure of the specific nature of the allegations against Nizami and Mujahid, and also to allow counsel to be present during the interrogation.
In relation to the disclosure he said there were two obligations placed on the prosecuting authorities under Article 9 (2) of the International Covenant on Civil and Political Rights - to be informed of the reasons for his arrest and to be promptly informed of any charges.
The Article states that, “Anyone who is arrested shall be informed, at the time of the arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”
He also said that Article 14 (3) (a) of the ICCPR and Article 67 (1) (a) of the International Criminal Court provides everyone shall be entitled: “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.”
He also said that Article 55 (2) (a) provides for the right of a person during an investigation: “To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court.”
In relation to this he pointed to the European Court of Human Rights decision in the 1990 case of Fox, Campbell and Hartley v United Kingdom, that: “any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness.”
He then argued that since the order of detention passed by the Tribunal on 2nd August 2010, the 'Applicants have not been informed of details of the specific offences or grounds that led to their arrest. They have not been informed of the nature or cause of the charges against them. Further, no allegations were made by the prosecution at the time of the arrest of the Applicants or promptly thereafter.'
He then submitted that since the order of the Tribunal dated 5th April 2011 as modified on 13th April 2011 did not direct the Investigation Agency to make detailed disclosure, through the Prosecution, of the nature and cause of the specific offences for which the Applicants had been arrested, it should do so now.
In relation to the question of the presence of counsel, he stated that the right for the accused to have their counsels present during all interrogations by the Investigation Agency is guaranteed under the 1973 Act and the Procedural Rules.
He noted that Section 12 of the Act provides as follows: “Where an accused person is not represented by counsel the Tribunal may, at any stage of the case, direct that counsel shall be engaged.”
This he said was upheld in Rule 43 of the Procedural Rules which stated that, “Where an accused is not represented by any counsel in the trial of a case, the Tribunal shall appoint counsel to defend such an accused…”
He then pointed to Rule 16 (2), which provides that: “No person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind”.
Putting this all together, he then argued that to ensure 'that violations of Rule 16 (2) do not occur, [the Tribunal should] upholds its duty to provide the Applicants with representation and allow for counsels to be present during all interrogations, within both the sight and hearing of the Applicants, as guaranteed by the Act and the Procedural Rules and various international instruments.'
In relation to the international obligations he pointed to provisions in the ICCPR which requires that legal assistance should be given to those accused of offences and in particular to article 55 (2) (d) of the ICC which provides for the right: “To be questioned in the presence of counsel unless the person has voluntarily waived his or her right," he said
He finished by saying, 'It is submitted that Bangladesh is a State Party to both the ICCPR and the ICC and has international obligations to adhere to. It is respectfully submitted that the Hon’ble Tribunal takes into consideration these international obligations and allows the Applicants’ counsels to be present within both the sight and hearing of the Applicants whilst being questioned by the Investigating Agency.'
At one point, Kabir used the term layman to describe the accused, and explain why they needed to have a lawyer present, and judge AKM Zahir Ahmed said that, 'To say that they are laymen, that is difficult to swallow.' Kabir explained that he was using the term to differentiate them from the lawyers, but the judge said that this was an inappropriate word for these men who had been parliamentarians.
Justice ATM Fazle Kabir also said at one point it was not necessary for a lawyer to be present at an interrogation as no confession made in front of a police officer was admissible. 'Presence of lawyers in interrogation we cannot allow,' he said.
The tribunal judges also observed that interrogation of suspects was an exclusive part of the investigation and the presence of any other person during it might frustrate the investigation.
Haider Ali responded for the prosecution. He argued that the safe house was perfectly safe.
In relation to the submissions on international law, he said that 'this is not an international court, this is a domestic court.'
He also said that there was no law in any country which allowed defence counsel’s presence along with the suspects during interrogation.
He again emphasised that it would not be possible to do a proper interrogation at the jail, as it is not possible to use technology there.
There was an exchange between the judges and Mr Kabir about the sketch map of the jail that the defence had given and what rooms were available. Judge Zahir Ahmed observed that the sketch map infact showed that there was not an appropriate room to arrange interrogation.
There was a short pause for a few moments, and the Tribunal chairman asked the chief prosecutor whether he felt the 'safe house' was safe. He answered, 'In my mind it is safe.'
The Tribunal chairman read out the following ruling:
'The application has been filed by the prosecution for modification of the order dated 5 April 2011 passed by this Tribunal. The application for adjournment filed by the defence counsel and application not to allow the interrogation of the accused person in the safe house situated at 20A, Rd 16, Dhanmondi Residential Area, Dhaka are also taken up for hearing.
On application for adjournment it has been stated that Mr Tajul Islam, learned counsel for the accused person is out of Dhaka, and that Mr Munshi Kabir, learned counsel is also out of Dhaka. When we took our seat we saw Mr Kabir present in the court room. As such the application for adjournment has been rejected.
The application for modification of order dated 5 April 2011 is taken up. Mr Syed Rzaul Karim, submitted that after the passing of the order dated 5 April 2011 one of the investigators Mr Saharul Huq met with Dhaka Central Jail authorities to talk about prospects for arrangements of interrogation and was told by jail authorities that it was not possible for jail authorities to arrange a room for interrogation of two accused person following direction of the order. He further submitted that the jail authorities have no extra rooms, for arranging the interrogation according to direction of the Tribunal. He further submitted that jail authorities had already communicated with Tribunal the position of the jail authority as the arrangement can not be done fulfilling the direction of the Tribunal.
On his submission, the learned prosecutor prays for the modification of the order about the place only and proposes for fixing of the safe house as place of interrogation which according to him is complying with all directions given by the Tribunal. Further submitted that by this time, the chief prosecutor has visited the safe house and said that this is a good place for interrogation and all facilities are available, the chief prosecutor said in court.
On the other hand, Mr Munshi, the learned advocate for the accused persons submitted that jail authority had not given due consideration of order passed by the Tribunal and just avoided to arrange place inside jail authority according to the order of the Tribunal. Further submitted that jail authority by doing so has denied to act on direction of the tribunal. Then also filed application for modification on ground that the interrogation may be allowed fulfilling the articles of ICCPR, Rome Statute etc, so for as they require the presence of lawyer, doctor at time of interrogation.
We have ourselves perused the letter given by the senior jail superintendent and addressed to our registrar.
Curiously enough we find that the jail superintendent has written with regard to interrogation at jail gate. In our order no direction was given to the jail authority to arrange interrogation at jail gate which clearly shows that the jail authority must apply his mind properly to order given by Tribunal.
However, on perusal of letter we are of the view that the jail authority has in fact given his consideration to appropriate interrogation in jail.
In application filed by defence, a rough sketch map has been shown. On perusal that also shows that no separate rooms are available.
However, considering all these things we are of the view that place of interrogation may be changed to safe house with some modifications. By order of 5 April 2011, can be modified in the following manner. Petition is allowed, and accused person should be given to the custody of an investigation officer on date fixed for interrogation at 10 am in safe house by jail authority and jail authority should take back the custody of the accused person at 5 pm on that date.
The investigation agency is directed to arrange a specific room for interrogation in safe house, and counsel for the accused is permitted to be present at adjacent room when interrogation will be held.
Investigation Agency is also directed to arrange one doctor to be present with one counsel during the interrogation time. The learned counsel and the doctor will be allowed to see the accused person at the interval time of such interrogation and doctor will examine the accused if necessary.
With these modification, the application is passed. Let the copy of this order be sent to the Dhaka Central Jail and a copy also send to the investigation agency and to the defence counsel.
1. The defence had made applications relating to an order from the Tribunal directing the investigation agency, prior to interrogation, to make full disclosure of the specific nature of the allegations against Nizami and Mujahid, and also to allow counsel to be present during the interrogation.
In relation to the application about disclosure, the order does not even mention that these application had been made, yet alone respond to them in the order. The application about the presence of lawyers at the interrogation is mentioned in the order, but there is no ruling in relation to it.
This continues to reflect the inadequate orders passed by the Tribunal: they often fail to respond to applications by the defence, or if they do, they fail to respond to specific arguments made in advancing the application.
2. This was a very depressing order. First one has to recognise that Dhaka Central Jail had been directed by a High Court order in 2003 to provide a properly designed place for interrogation inside the jail and since then has been supposed to have been carrying out interrogations inside the jail using the facilities then available. (download HC ruling). So the jail has no excuse at all for saying that it does not have facilities - it is simply admitting that it has failed to comply with a High Court order.
Secondly, in my view, because of the symbolic importance of this order, the tribunal should have worked much harder to see whether its earlier order could somehow have been implemented. It seemed to me to too easily agree with the jail authorities and the prosecution, that the interrogation inside the jail was not possible. The Tribunal should have summoned the superintendent and gone through all the options - perhaps, considering whether rooms that were sometimes busy, could be cleared for the one day for the interrogations.
See this article which explains my view further: Int’l Crimes Tribunal: growing independence or a return to being the rubberstamp?