This blog deals with the first application. A seperate blog deals with the bail application.
Application for Interrogation Order Revision
The background to this application is as follows. 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
On 13 April, the Tribunal altered its order to allow interrogation to take place outside the jail in a 'safe house' in Dhanmondi, with a doctor to accompany the lawyer in the adjacent room. This order was made after the Tribunal received a letter from the jail authorities which stated that there was no space to allow interrogation to take place, and on the basis of an application by the prosecution. See blog.
On the 13th itself, also rejected an application made by the defence which sought a modification of the Tribunal's 5 April order requiring the Investigation Agency would make full disclosure to the Applicants of the specific nature of the allegations prior to interrogations and also requiring counsel to be present during all interrogations of the applicants.
Tajul Islam, spoke on behalf of the two accused. He argued that although a specific prayer (on 13th) was made by the applicants for disclosure of the allegations prior to the interrogations, no order was passed by the Tribunal either allowing or rejecting such prayer. He also said that it was apparent from the order dated 5th April 2011 as modified on 13th April 2011 that 'the Tribunal did not take into consideration the international treaties and instruments which have made it mandatory for the Investigation Agency to allow lawyers to be present during interrogations.'
He also argued that the Tribunal order 'did not refer to the facts and circumstances of the case which in its opinion has rendered an order of committal ‘indispensable’ for proper investigation' - a requirement, he said, of Rule 16 of the Rules of Procedure.
He argued that the Tribunal pass the following orders:
- a direction not to commit the Applicants to custody of the Investigation Agency for the purpose of interrogation; (nb: this would in effect require the Tribunal to reverse its decision on 5 April)
- a direction upon the Investigation Agency to make full disclosure to the Applicants, through the Prosecution, of the specific nature of the allegations prior to any interrogations;
- a direction upon the Investigation Agency to allow counsels to be present during all interrogations of the Applicants.
- a direction to provide 14 days notice to the defence lawyers before interrogation is to take place.
Failure to follow Rule 16
Islam first argued that the Tribunal did not have the information before it to make a decision on whether to allow interrogation to take place. He said that under Rule 16(1) of the International Crimes Tribunal, Rules of Procedure, 2010 the Investigating Officer is required to form an opinion as to the necessity of interrogating the accused in his custody. 'This opinion is required to be formed objectively on the basis of documents and evidence.'
[The relevant portion of rule 16(1) states as follows: “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....” ]
Islam claimed that, '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 by the Prosecution on the basis of which the Investigating Officer sought custody for the purposes of the interrogation. The Orders of the Tribunal also do not indicate the basis on which custody of the Applicant has been granted to the Investigating Officers.'
He claimed that the Investigating Officer did not have any material or evidence to form an opinion as to the necessity of the investigation. 'He has merely made general allegations in the application which are not supported by any materials or evidence. The Orders of the Tribunal dated 5 April 2011 and 13 April 2011 do not refer to any document, material, evidence or witness which has necessitated the interrogation of the Applicants. In fact, the Order of the Hon’ble Tribunal directing interrogation in the custody of Investigating Officers is without any factual or legal basis.'
He also argued that Rule 16(1) of the Rules, requires the Tribunal itself to form an opinion that the interrogation of the Accused in the custody of the Investigating Officer is “indispensable” for proper investigation. [The relevant portion of the rule 16(1) states as follows:“...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 the opinion that for proper investigation such order is indispensable.”]
The lawyer argued that, 'As such the Tribunal is required to be satisfied that first for the purpose of proper investigation, interrogation of the Applicants is “indispensable” and secondly that such interrogation in the custody of the Investigating Officer is also “indispensable”. However, in the facts and circumstances of the case there were no materials or records before the Tribunal on the basis of which it could be so satisfied and that the Orders of the Tribunal dated 5th and 13th April 2011 also do not refer to any materials or evidence.'
He argued that 'the interrogation in the custody of the investigating officers is merely a fishing expedition.'
He went onto argue that the Prosecution 'failed to disclose why interrogation of the Applicants is necessary in the custody of the Investigating Officer. The Applicants 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 argued that 'there was no finding on the part of the Tribunal that interrogation was indispensible'
'After 8 months no progress in investigation shown. Only general attacks, not substantiated by evidence.'
He also argued that non-availability of rooms at the Dhaka Central Jail for interrogation is not a ground under the Rules for handing over the Applicants to the custody of the investigating Authority. 'The sole legal requirement to be satisfied under the said Rules is whether custody by the investigating officers is “indispensable”,' he said.
He then made the arguments concerning the need for disclosure of information to the accused before interrogation and and also why lawyers should be allowed to be present during the interrogation. In relation to these he used exactly the same arguments that had been made by Mr Munshi Kabir on 13 April concerning the disclosure of information (see blog).
Islam did make some additional points on why lawyers should be present during interrogation. He said that the presence of a lawyer during interrogation is the only way to ensure that rule 16(2) - which stated that, 'No person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind' - can be given effect.
In response, the Tribunal said that 'interrogation is a sacred part of the investigation'. Tajul argued that the CrPC had been excluded from the Tribunal's operations and so new procedure could be adopted by the Tribunal. The Tribunal chairman said that the 'investigation [from the interrogation] will not be admissable.' In relation to the international standards, he said 'Rules are made by us. Not by foreigners. Some international rules of procedure that are not inconsistent with Act can be incorporated in our rules of procedure. This is the way it should be'
The chairman added, 'The Tribunal will conduct itself so that no foreign country can question us. It will meet international standards so far as fair standards are concerned.'
One of the judges asked, 'what is the purpose of the atending advocate? Is it not to give the accused advice. The lawyer should only be there to see the health of the accused. Nothing more. He is not allowed to give advice to the accused.'
Islam said that he was seeking clarification on two things. That there was a right to silence during interrogation And information given cannot be used as evidence.' It appeared that the Tribunal agreed with these things,
In relation to the length of notice defence counsel should be given before an interrogation takes place, Islam said it should be 14 days. To that judge AKM Zahir Ahmed asked him, 'Why 14 days? Why not 14 months?'
The Tribunal chairman indicated to the prosecutors that they need not respond on these applications.
The chairman read out his ruling:
'Mr Tajul Islam learned counsel appeared for the accused persons placed before us the review application and submitted the points raised in that application. We are of the view that the points raised have already been decided in the earlier orders and there is nothing to be reviewed. However on the prayer of giving a notice, at least 48 hours should be given to counsel of accused informing him of date and time of interrogation. With this, the application is disposed.'
1. Because there is no right for the defence to challenge any of the Tribunal orders, in effect the lawyers are forced to make applications to the same set of judges saying that it made a mistake in making an earlier order. So here, the lawyers are arguing that in making its order of 5 April, it failed to apply Rule 16(1) properly, failing make a ruling on whether interrogation was 'indispensable' and if so on what basis.
Effectively the defence lawyers are asking the Tribunal to rule against itself - something that it is hardly likely to do. This is yet another example of the necessity for having interlocutory appellate hearings.
2. The order fails to engage with any of the arguments made by the defence lawyers - other than the one seeking an order that they are informed in good time prior to the interrogation taking place. It is as though none of defence lawyers arguments were actually put. It does not rule on the meaning of Rule 16(1) and what is required by the investigation agency and by the Tribunal itself in satisfying that rule. Nor does the order itself engage with the arguments about the international obligation to have a lawyer present during the interrogation (though comments were made during the hearing itself relevant to this). The failure to rule on these issue is quite remarkable really and reflects the on-going failure of the Tribunal to provide proper reasoned orders.