28 Apr 2011: Sayedee interrogation request

The hearing on 28 April 2011 dealt with two issues. The presence of Mr. Abdul Alim (the only accused to have got bail from the Tribunal (see blog)) and an application by the prosecution to take Sayedee into remand for questioning

Alim
This was a very short hearing. Counsel for the accused, Advocate Tajul Islam, told the tribunal that his client has been complying with the conditions set out in the Tribunal's March 31 bail order.

Prosecutor Zead Al Malum told the tribunal that the investigators have not yet submitted any investigation report against Alim, but the investigation is in progress, he said.

The Tribunal ordered that he appear again on 21 July, and that the investigation agency submit a report on their investigations by then.

Sayedee
This was the fourth application filed so far by the prosecutors seeking the interrogation of one of the accused. So far the Tribunal has dealt with applications relating to Nizami, Mujahid (on 5 April and 31 April, 21 April) and to Salauddin Quader Chowdhury (on 19 April). For each of these three defendants, the Tribunal finally ordered that the accused should be remanded for one day with the investigation agency in a 'safe house' for questioning.

The arguments both by the prosecution and the defence in relation to the application involving Sayedee was very similar indeed to the previous hearings involving Nizami and Mujahid and so the summary here is relatively brief.

The prosecution application argued by Mr.Sayed Rejaur Rahman sought remand for 3 days. He said that investigation was in progress and that interrogation was necessary as the investigation was nearly finished. He said that they had a lot of documents and evidence that needed to be tested. He said that a house in Dhanmondi had been gazetted

Before Tanvir Ahmad Al-Amin responded to the application for the defence, he made two points. First he argued that it was inappropriate for the prosecution to use the name 'delu' in its application. (This point has been raised in previous hearings). The Tribunal said that whether he is in fact 'Delu' or not will be a matter for evidence. The chair said that it was common in applications for nicknames to be used to identify people. The defence responded that it is not useful if in fact this is not his name. The lawyer argued that in the future they should not use the word 'Delu'

The lawyer then pointed to a part of the prosecution application in which Sayedee was termed as a 'criminal' rather than as an 'accused'. 'It is accepted that a person is innocent until proved guilty,' the lawyer said. The Tribunal chair responded by saying that if it is written in the prosecution submission that he is a criminal, he will not be proved as criminal by merely claiming so. The Tribunal also said that a person is innocent until proved guilty.

Subsequently one of the other Tribunal members told the prosecution that they should not use the word 'operadi' (criminal) in their application. 'The terms used should be fair,' he said.

Al-Amin then went on to argue against the interrogation application. He said that Section 16(1) of the 1973 Act had not been fulfilled.

He argued that the investigation officer needs first to form an opinion that remand is necessary. "There is no information or evidence in the application that can allow him to form an opinion that remand is indispensable. Just general allegations.' He also said that the investigation officer must make this opinion 'objectively' - it is not enough for him to subjectively believe that there is sufficient evidence there must be an objective basis.

The Tribunal asked, 'Where do you get this from that there must be an objective basis for the investigation officer's opinion'. The lawyer said that this was implied. He then referred to a House of Lords Case, R v A, to support his view that 'the investigation officer must objectively decide that necessary. That it be indispensable, not just necessary.'

'Indispensable means that if the information can be obtained in any other way, then that should be tried. The prosecution has not submitted documents to satisfy that custody of the accused is indispensable.' he said.

Al-Amin pointed to the application and said that there was nothing written as to why it was necessary that the accused should be in remand. He said that it was not stated why an interrogation 'in cell or at jail gate was not equally efficacious.'

He then argued that there was no evidence that the 'safe house' was really safe and secure. The lawyer argued that the house needed substantial changes to make it safe and secure. He also argued that there house was not properly equipped in case there was a medical emergency, and pointed to the age and health condition of Sayedee.

He then pointed to the 8 year old High Court order, referred to previously, that required interrogations to take place in prisons. 'This has not been applied, he said. ''Lordships, why did jail authority not make changes in light of the BLAST judgement.' He said that the jail authority had a legal obligation to comply.

The prosecution then replied and explained that there was no reason why the safe house should not be considered safe. He said that the safe home was appropriately equipped and doctors could be made available if there was an emergency.

The Tribunal then made its order:

This is an application filed by the prosecutor praying for an order under section 16(1) to commit the arrested accused Delwar Hossain Sayedee in the custody of the investigation officer for a period of 3 days for purpose of interrogation is taken up for hearing.

Application for not committing the said accused in the custody of the investigation officer for interrogation has also been filed by defence and is taken up for consideration.

Syyed Rejaur Rahman appearing for the prosecution argued that for proper investigation of the case the accused person should be committed in the custody of the investigation officer for purpose of investigation. He further submitted that the government has by gazette notification declared the house no-405/b, road-27. (New house no-20/a. road no-16) Dhanmondi, as Safe home and interrogation if allowed should be done in that house. Further submitted that materials collected by Investigation agency required to be examined by the investigation officer. He also submitted that some materials also collected by investigation agency during investigation which connect the accused person to the offence in question and for testing those documents it is necessary for taking him in custody.

It was further submitted that the investigation of the case is at the fag end and if the investigation will be prohibited the whole investigation will be defeated and incomplete.

Also submitted that the investigation agency has the right to interrogate the accused person for getting the whole picture of occurrence and this right should not be taken away. So prayed for custody of accused person in custody of investigation officer.

On the other hand Mr. Tanvir Ahmad Al-Amin appeared for the accused petitioner and submitted that the prosecution could not make out a case under section 16(1) of the Act to commit the accused person in the custody of the investigation officer. Further submitted that there is nothing in the petition that investigation officer was satisfied objectively for the purpose of committing the accused person in the custody of the investigation officer for interrogation and that no materials were available in the petition for the Tribunal to form its opinion that such order is indispensable.

He further submitted that the safe home as has been stated by the prosecution is not safe for accused person considering his security. Furthermore not stated in the application that there was arrangement for medical treatment in case of emergency when known that accused person is diabetic and heart patient.

We have heard both the parties. On perusal of petitions we are or the view that the reasons for committing the accused person in the custody of the investigation officer have been satisfied and investigation officer was satisfied that this interrogation is required for proper investigation. Also of the view that this committal of accused person in custody of the investigation officer is indispensable for proper investigation of this case. As such we allow the petition with the following conditions.

It is stated that that accused person is a diabetic with heart problems. Considering this we are inclined to allow this petition with some conditions stated below

The accused is given to the custody of the investigation officer by the Jail authority for interrogation in designated safe house for person of one day.

The jail authority shall produce the accused person at 10 am and take him back from custody at 5 pm.

The investigation officer is required to arrange a room for interrogation.
We also direct the jail authority to depute one doctor of the jail hospital to be present at the adjacent room during period of investigation.

The investigation officer should also allow one advocate of the accused in the adjacent room with the doctor.

The advocate and the doctor are allowed to see the accused at interval time. The doctor present should be able to look at health condition of the accused person if necessary.

The investigation officer will inform the jail authority and lawyer at least 48 hours before the time of interrogation.

The investigation officer will not put any pressure or threat on the accused during investigation.

The accused must be questioned in the language he speaks, Bengali, so that he can understand questions and give responses to them, and at the conclusion of the interrogation or questioning the accused shall be offered the opportunity to clarify anything he has said, before the Investigation Officer.

At the same time, the Investigation Officer comply with 16(2) of the Rules 2010.

With these conditions, the prayer is allowed.

Let a copy of the order be sent to the Superintendent of Dhaka Central Jail for information and necessary action. Copy thereof also be sent to investigation agency and the defence counsel.'

The following was then added to the order by the Tribunal chair:

'Also perusal of case find that investigation of case at fag end and we are of the view that interogation of the accused person is indispensable.'

Comment
At least this time the tribunal ruled that in its view interrogation was 'indispensable' (previously the Tribunal's orders had not even stated that interrogation was 'indispensable' as required by rule 16). The only reason he gave was that the the investigation was at the 'fag end'. I am not sure if that is a sufficient a reason to decide that interrogation was 'indispensable', but at least a reason was given.

21 Apr 2011: Nizami bail application

This is the second part of the hearing that took place on 21 April. To see the earlier morning session that dealt with an interrogation application, see here. This hearing deals with a bail application on behalf of four accused, all leaders of the Jamaat-e-islami.

Tajul Islam, for the four petitioners, Motiur Rahman Nizami, Ali Ahsan Mohammad Mujahid, Md. Kamaruzzaman and Abdul Quader Mollah, said that the applicants had been produced before this Tribunal on 2 August 2010 which then had passed an order directing the prison authority to keep the men in custody until receiving another order, and as a result they have now been in jail custody for over 8 months.

Islam said that previously the prosecutors had alleged that the applicants should be detained in jail custody because they have committed offences under the International Crimes (Tribunal) Act; that “intensive” investigation was going on and to allow this investigation to continue they need to be detained.

He said that ‘following Bangladeshi principles on bail, the Tribunal should exercise its judicial discretion to grant conditional bail to the applicants. ‘

He first argued that there were no reasonable grounds for believing that the applicants had committed offences and said that no investigation or progress report had been submitted to the Tribunal.

He said that on 15th March 2011 the Tribunal had directed the prosecution to provide information as to the progress of investigation against the applicants (Nb: not clear from blog that this was the case!), but that ‘It is respectfully submitted that there has been no progress in the investigation and the Investigation Authority has failed to exercise due diligence in the investigation. Even after nine months, the Prosecution has failed to establish a prima facie case against the applicants. Without a formal charge, there can be no reasonable grounds to believe the applicants committed crimes under the Act and should be detained without bail. ‘

He said that the allegations against the accused were 'vague'.

He then said that the applicants were unlikely to abscond. He explained different ailments he claimed were suffered by each of the petitioners.
- He said that Nizami was 69 years old and suffers from a number of ailments including cardiac diseases, high blood pressure, an enlarged left ventricle of heart and a block in the ‘right bundle branch’. ‘He has also been suffering from diabetes for the last 10 years, which has been kept under control by a strict regulation of his diet. He also suffers from severe back pain (prolapse lumbar inter-vertebral disc) which tends to cause serious pain in the waist and legs when sitting or standing for extended periods of time. He also suffers from ailments such as stiff neck and ‘tennis elbow’, requiring administration of injections and physiotherapy on a regular basis and has recently undergone surgery of his gall bladder and prostrate. He has limited central vision in one eye as a result of complications during a cataract operation.’

He went onto say that ‘as a result of the prolonged detention in custody without proper medical treatment, Nizami continuously suffers from high blood pressure. He has contracted the herpes viral disease as a result of immunodeficiency caused by increased stress and anxiety arising out of the prolonged detention. His health has deteriorated so much so that he has passed blood while defecating. Due to his poor health, the Jail authorities have been compelled to call in the doctors. However, these doctors prescribe medicine without carrying out any medical assessment. Such medication without proper assessment is aggravating his health. ‘

Islam referred to a High Court order on 15th July 2010 directing that physiotherapy facilities be provided to Nizami, which was upheld by the appellate division. However, despite such orders, he said no physiotherapy facilities are being provided by the jail authorities.

- Islam then said that Mujahid, was 63 years old and suffers from high diabetes which necessitates regular intake of medication and adherence to a strictly controlled diet. He said that he also suffers from severe back pain and knee pain and needs physiotherapy five days a week. Same High court order relating to physiotherapy also applies to him. Also said that suffers from eczema which has been worsened by sleeping on dirty blankets during remand.

- He said that Kamruzzam suffers from high diabetes and that due to irregularities in his diet and lack of medical treatment in jail custody, the applicant’s condition has aggravated. He also has severe prostate problems that have worsened since his detention, he said

- Mollah, his lawyer said, was insulin dependent for the last 35 years and requires 'regular medical assessments to keep his sugar level under control but lack of treatment has meant that his diabetes is completely out of control creating further complications in relation to his prostate gland, eyes and feet.'

Islam said that all four of the applicants were willing to surrender their passports before the competent authorities and to undertake that they will not apply for travel documents without prior permission from the Tribunal. They are also were willing, he said, to comply with a residential condition to reside at their respective addresses which were set out in the petition and to report to the Tribunal on an agreed regular basis.

‘Taking into consideration the applicants’ health and age as well as their willingness to comply with the aforementioned bail conditions, it is respectfully submitted that the applicants are unlikely to abscond and may be granted conditional bail.’ Islam told the court.

Islam went onto say that it was unlikely that the petitioners would commit any new offences. He said that there is no reasonable ground to believe that the applicants will be convicted in this case and alleged that the ruling party has brought false allegation of war crimes, crimes against humanity and genocide just to harass them politically and malign their party. ‘The prosecution has miserably failed to produce any evidence against the applicants during the 8 months of their detention. They are trying to victimize the applicants by keeping them in custody for an indefinite period without any formal charge,’ he said

Islam also argued that there was no allegation that the applicants had tampered with the witnesses or created any obstacle in the process of investigation and he added that the applicants are willing to undertake that they will not travel to any alleged crime-scene without prior permission from the Tribunal and willing to undertake not to contact any prosecution witnesses or to interfere with the investigation process.

Islam again repeated that there was no prima facie case against the accused, just broad allegations; there had been no progress in the investigation for the last 8 months; they have been in custody for this time and suffering ill health; no possibility of them committing a crime again; there was no evidence suggesting that they would interfere with the investigation.

He said that there was a right to bail. One of the Tribunal members then said these are 'non-bailable offences. There is no right to bail.' Islam responded by saying that the Tribunal has inherent power to give bail.

Islam then submitted that there was ‘an international obligation to grant bail to the applicants’. The arguments here were identical to those in the bail application relating to Sayedee which was heard the previous day (see blog) and are similiar to ones argued in a previous bail application (see blog)

Islam then stated that ‘applicants should be granted bail to seek urgent medical attention.' Referring to his earlier comments, he said that the applicants were elderly persons and suffeedr from a number of ailments including cardiac diseases, high diabetes, high blood pressure and severe back pain.

Islam added that on 11th April 2011, a doctor of the Dhaka Central Jail hospital prescribed as many as 8 types of medicine to Nizami without any prior medical examination and that it was 'evident that no proper treatment is possible for the applicants in Jail custody.'

The lawyer then related what had happened to Sayedee when he was taken to PG hospital. ‘Due to the manner in which the above medical checkup was conducted, the Applicants have serious doubts about the possibility of providing proper medical treatment to them in the custody of the jail authorities.' he said.

Islam concluded by asking the tribunal to grant conditional bail to the applicants on the condition that they:
- surrender their passports
- do not apply for any travel documents without the prior permission from the Tribunal;
- reside at the addresses given to the court;
- report to the Tribunal on an agreed regular basis;
- do not travel to any crime scene without prior permission from the Hon’ble Tribunal;
- do not contact any of the Prosecution witnesses;
- do not interfere with any part of the investigation process.

Finally he gave a list of names of people willing to provide surety of an agreed amount as a condition for bail.

Haider Ali for the prosecution then rose. (This next section is brief, as I could not follow all his arguments).

He argued that the medical papers annexed to the bail application did not suggest that these men were seriously ill, all the conditions could be dealt with in jail or by allowing them to go to private hospitals.

He said that there was nothing new in these applications - and that they raised the same points that has been dealt with in earlier bail applications. The 'matter has already been decided' he said.

He argued that the rights in the 1973 Act and the constitution were consistent with the ICC and the ICCPR in giving appropriate rights to the defendents. He pointed to Article 27 of the constitution which stated that all 'citizens are equal before law and are entitled to equal protection of law' to suggest that these accused should not be given additional right.

He pointed to the new article 6(2)(A) of the 1973 Act which states that, 'The tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial,' to indicate that the Tribunal will organise fair trials.

He then went through different provisions of the 1973 Act which he said indicated that the accused have all the rights necessary for a fair trial.

He said that unlike the situation with the ICC, the Tribunal was not a pre-trial chamber.

Following this, the Tribunal made the following order:

'Application for bail submitted by four accused, (1) Motiur Rahman Nizami; (2) Ali Ahsan Mohammad Mujahid; (3) Md. Kamaruzzaman and (4) Abdul Quader Mollah taken for hearing

Mr Tajul Islam, the lead counsel appeared for petitioners, and Mr Sayed Haider Ali appeared for the prosecution.

Mr Tajul Islam took us to the application for bail and submitted that the petitioners are in custody from 2 August 2010 and till now no investigation report has been submitted. Further submitted that vague allegation made against these petitioners and as such no prima facie case against them they may be enlarged on bail.

Further submitted that under different articles of the ICCPR and the ICC, the accused petitioners are entitled to be informed about charges against them but until now nothing has been given to them and as such their detention in jail custody is illegal, and considering this the accused should be given bail.

Mr Tajul then took us to the health conditions of the accused. Petitioner 1 is about 69 years old, Petitioner 2 is about 63 years old, no age is given in relation to petitioner 3, and petitioner 4 is 63 years old and submitted that all four petitioners are sick from different ailments including heart, diabetes, high pressure, prostate gland and other problems.

He further submits that in jail custody, the petitioners are deprived of getting proper medical treatment. They also require physiotherapy, but no such treatment is available in jail custody. It is lastly submitted that health conditions of accused for want of proper treatment, their long detention in custody, and failure of submission of investigation report before this Tribunal, are reasonable grounds to enlarge them on bail.

On the other hand, Mr Syed Haider Ali argued these mean are very influential in society, and amongst them are two former cabinet ministers and as such high influential persons in society. They can influence the investigation if they are enlarged on bail. Mr Haider Ali further submitted that the medical documents annexed with the petitions do not show that they are seriously ill. He further submits that the investigation is at the fag end stage and taking two persons in custody in the custody of the investigation officer has been allowed for one day and at this stage the petitioners cannot be enlarged on bail, He further submits that the petitioners may be allowed to take better treatment in a specialised hospital if advised by the doctor of the jail hospital. Last of all the learned prosecutor submits that the charge of crime against humanity has been brought against these petitioners and as such the prayer for bail should be rejected.

We have heard the learned counsel for the petitioner and learned prosecutor and perused the record. This is a case initiated against the petitioners for crimes against humanity, and normally in such cases accused persons are not enlarged on bail. The submission by the learned counsel for the petitioners that enabling them to obtain medical treatment outside the jail is reasonable and justified.

Regarding provisions of the ICC and ICCPR, we are of the view that those two versions of law do not make a case that the accused are entitled to be enlarged on bail in a case like this. However considering above aspects that at this stage, we are not inclined to enlarge them on bail. However considering the documents grounds as submitted by Tajul Islam, we arrange their treatment inside the jail or outside the jail if advised by the doctor. WE have been advised that all four patients are diabetic patients. We want to pass a similar order as passed in case of Delwar Hossaim Sayedee yesterday. It is directed that if necessary they should be given treatment in Birdem hospital at the cost of the petitioners. Therefore the prayer for bail is rejected. The prosecution is directed to complete the investigation of the case as early as possible or in the alternative submit progress report by 1 June 2011. The jail authorities is also directed to provide food to the petitioners including 'green vegetables' (which is necessary for diabetic patients). Let a copy of the order be sent to teh jail authority for its compliance and if the doctor suggests then the jail authority will produce the petitioners to Birdem hospital for better treatment at teh cost of petitioners. A copy of the order be served upon the accused petitioners.

Comment
1. Following the decision made the previous day, it was pretty predictable that the Tribunal would not provide bail to these accused.
2. It is rather surprising that the Tribunal basically dealt with all four individuals in a kind of 'job lot'. There appears to have been no consideration by the Tribunal of dealing with these applications for bail individually. By not doing so, it gives an impression that the Tribunal has a policy of not giving bail to the accused. This is an impression that the Tribunal should not want to give. It should consider each accused in turn, and look, in relation to each individual defendent, whether bail is appropriate or not.
2. Again, the Tribunal does not deal with the defendents arguments in any substantive way. The Tribunal does finally mention the defendents arguments about international standards, but simply says: 'Regarding provisions of the ICC and ICCPR, we are of the view that those two versions of law do not make a case that the accused are entitled to be enlarged on bail in a case like this.' If that is the view of the Tribunal - a perfectly legitimate one - then it needs to explain why it considers this to be the case. The sentence gives the impression that the Tribunal considers that these standards apply to the Tribunal but thinks that in this case, they do not help the accused. This is not good enough. It needs to clarify whether these international standards do apply to the tribunal or not, and if they do, they need to explain why the defendents arguments do not engage on the issue at hand. This is basic judicial reasoning that is completely absent in this order.
3. The order says at one point, 'This is a case initiated against the petitioners for crimes against humanity, and normally in such cases accused persons are not enlarged on bail.' On what basis is it saying that? I assume on the basis of experience in other tribunals. If so, it should say this. However, it is likely that the difference in other tribunals is that the men accused of crimes against humanity are genuine flight risks, who had been escaping capture when they were brought to these international tribunals. This is a very important distinction between others accused of these crimes and these particular accused that the Tribunal seems not to have considered, or at least this is not at all apparent in the order.

21 April 2011: Nizami, Mujahid interrogation

On 21 April 2011, two applications were considered. First, an application by Motiur Rahman Nizami and Ali Ahsan Muhammad Mujahid seeking a revision of Tribunal's orders relating to their interrogation. And secondly, a bail application relating to Nizmai, Mujahid and Muhammad Kamaruzzaman .

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.'

Comment
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.

20 April 2011: Sayedee Bail Application

On 20 April, Nizami, Mujahid, Sayedee and Kamrazuman were all brought before the Tribunal.

Jamaat's UK Laywer's presence
At the start, the Chief Prosecutor raised an issue about the presence of a UK lawyer (Toby Cadman) acting for the Jamaat-e-Islami defence team who was sitting upstairs observing the Tribunal. The prosecutor appeared to suggest that he should not be allowed in court. The Tribunal chair said that the Tribunal members had given 'anxious thought about the matter and permitted him to remain there.' (It was not clear why the prosecutor made an issue about it, since Cadman had been present at the hearing the day before). However it may have been linked to an odd incident that happened on that day when at one point, during the half hour adjournment before the Tribunal gave its order, the prosecutors surrounded Cadman (who had come down from the seats upstairs, and alleged that he was recording the proceedings. He strenuously denied this, but the registrar walked Cadman out of the Tribunal and Cadman was not present when the order was read out.

Tribunal Chair's comment
The Tribunal chairman then went to say 'we would like to say something to you all'. He then talked about the issue that happened yesterday relating to the lawyers refusing to come into court unless all of them (as many as 50) were allowed to come in together. (He repeated much of what he said the day earlier). The court was content for ten or fifteen to come in but there was not enough space for all of them. 'It is absolutely impossible' he said.

He mentioned two lawyers by name as being responsible, as 'leaders' of the lawyers. Fakrul Islam (who had argued in the Tribunal on earlier occasions) and a former minister of law. He said that the leaders of the lawyers had a responsibility to keep things in order and said that if this did happen again in the future they would be forced to only allow those lawyers who had been instructed by the defendents to come to court.

Contempt of court?
After the chairman had finished, Judge AKM Zahir Ahmed then spoke. He said that an article had come to his attention, 'International Criminal Tribunal: Growing Independence or a Return to be being a rubber stamp' which was in part 'contemptuous'. He said,'Journalists are allowed to express their views' but cant be in contempt of court. [He was referring to an article that I had written!]

He then referred to various expressions that were used,'Who is he to say what does or does not have a backbone?' the judge asked. He then pointed to a sentence in which it was written that, 'The Tribunal just 'rolled over' without seeking any further information.' He said that this was not true and said that the Tribunal had looked at the sketch maps provided by the defence. He then asked the defence lawyer, Advocate Munshi Kabir, whether this was the case, and Kabir confirmed that the Tribunal had looked at the sketch map before making its decision.

He then said, 'Yes, you have a right to criticise' but you cannot use this language against the Tribunal. 'It is contemptuous and punishable'

Justice ATM Fazle Kabir then spoke, and asked whether 'David Bergman was present in court.' I put my hand up and he then asked me to stand up. He then said, 'We have gone through this report. Your manner of reporting is very nice, no doubt ... We know that you are of foreign origin and so we are warning you about your language.'

He then said that there were two words that were 'very much contemptuous.' He then referred to the use of the word, 'Rubber stamp'. 'We are very sorry about this but you can not use this words about our court. If you use these words in future then we will take action. According to the rules of this court in Bangladesh these words are absolutely contemptuous. In recognition of the fact that you are a foreigner, we will not take action against you' (see article responding to this incident: International Crimes Tribunal and contempt of court

Bail application for Sayedee
Tanvir Ahmed Al-Amin stood up to represent Sayedee. He first said that he objected to the use of the words 'alias Delu' after Sayedee's name in the prosecution application as this alias had never been used by Sayedee. He asked the Tribunal to order the prosecution not to use the two words 'alias Delu.' 'It was never a nickname of the accused. He is very much known as Delawar Sayedee,' he said.

The tribunal chairman said that this 'was a matter of evidence' and it will be dealt with later in the trial, and told the lawyers to start his main submission.

Sayedee was arrested on 29 June 2010, nine and half months ago, Al-Amin said.

He said that there ‘are no reasonable grounds for believing that the accused had committed the offence with which he is charged’. He has not been formally charged.

By an ‘order dated 29 December 2010, the Tribunal had directed the Investigation Authority to complete the investigation by 15 February 2011 and submit a report to the Tribunal via the Prosecution. That on 15 February 2011 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 of the Accused-Petitioner until the investigation is concluded. Thereafter on 15th March 2011 this Hon’ble Tribunal extended the detention period of the Accused-Petitioner and directed the Investigation authority to conclude the investigation within one month or to submit a progress report of the investigation with case diary.’

Al-Amin said that this shows that there was ‘no progress of investigation and the Investigation Authority has failed to exercise due diligence in investigating this case and even after nearly ten months, the Prosecution has failed to establish a prima facie case against the accused. 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.’

Al-Amin said that the investigation agency has previously argued that the accused should be detained in jail because:
- 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.

Sayedee's lawyer said that the accused was unlikely to abscond as he was ‘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,’ and that he has no place to live outside Bangladesh

He said that the accused would be willing to surrender his passport and to undertake that he will not apply for travel documents without prior permission from the Tribunal. He added that the accused was willing to comply with a residential condition to reside at his address at 914, Shahidbag, Dhaka 1217 and was willing to report to the local police authorities on an agreed regular basis.

He said that the accused would not repeat any alleged offences as he was an internationally reputed Islamic scholar who has given religious teachings for 50 years and has been twice elected as Member of Parliament in 1996 and 2001 by the people of Pirojpur, and has no previous convictions.

Al-Amin said that there is no evidence of a risk of an increase in terrorism in Bangladesh by his client's release as the accused has publicly criticized acts of terrorism in his religious preachings.

He said that was no evidence to suggest that that the accused has any connection to an ‘armed cadre force’ and as a result no threats have been made to any witnesses.

He added that, ‘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 could submit its reports very recently on 28th January 2011. Moreover there is no allegation against the Accused-Petitioner in the said general diaries.’

The Tribunal asked was the accused not an MP, 'does he have no influence?' the lawyer said that 'Does it mean that he will use his influence to effect the witnesses?'

Al-Amin went onto say that the accused is willing to undertake that he will not travel to any crime-base areas without prior permission from the Tribunal and to undertake not to contact any Prosecution witnesses or to interfere with the investigation process.

He argued that the accused has not been subject to detention ‘in accordance with the Bangladesh Constitution or the Code of Criminal Procedure, 1898’ .

He also argued that there was an ‘international obligation to grant the right of bail to the Accused.’

In relation to this, Al-Amin submitted that Bangladesh is a State Party to both the International Covenant on Civil and Political Rights (ICCPR) and the International Criminal Court (ICC) and the prosecution have failed to prove, as required by these treaties that the Accused-Petitioner’s detention is both reasonable and necessary as required by the UN Human Rights Committee [which enforces ICCPR].

His continued detention is, it was argued, arbitrary and contrary to Art. 9 (1) ICCPR and Article 55 (1) (d) of the ICC. The accused has also been detained with out being promptly informed of any formal charge in breach of Article 9 (2) of the ICCPR and Article 60 (1) of the ICC. It was submitted that his detention without charge is a product of delay on behalf of the Prosecution as stipulated in Article 60 (4) ICC.

Article 9 (1) of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 55 (1) (d) Rome Statute (“ICC”) 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.”

He argued that that the Human Rights Committee’s constant jurisprudence defined the notion of “arbitrariness” as being broadly interpreted as: “to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime.”

Article 9 (2) of the 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.”
Article 9 (3) ICCPR states that, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. 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 judgment.”
Article 60 (1) of the ICC states that, “Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights…to apply for interim release pending trial (emphasis added).”
Article 60 (4) of the ICC states that “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).”

Al-Amin then argued that on the basis of his medical condition the accused should get bail. He said that the accused has been a diabetic patient for the past thirty five years and 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 shoulders, arms, prostate gland, eyes, foot and other parts of his body.’

He also said that he had complained of serious pain in his heart and requires immediate medical attention. On 14 January 2011 a cardiologist advised that he should undertake a number of medical assessments/examinations, but he said that no such medical examinations has yet been undertaken.’ He also said that the accused suffers from chronic arthritis and experiences pain in his neck, upper limbs, waist and knees and the level of pain has increased substantially due to lack of physiotherapy.

He then made a complaint about his client's treatment at Banga-Bandhu Sheikh Mujib Medical College Hospital also known as PG Hospital after the Tribunal had directed the Jail authority to arrange for necessary medical test and treatment. After eleven days on 26th March 2011 the jail authority took the accused to PG Hospital where he was met (1) Prof Dr Abu Siddique, Chairman, Department of Cardiology, (2) Prof Shahadat Hossain, Colorectal Surgery Unit and (3) Prof Farid, Endocrinology Dept who checked him separately for few minutes each. The accused apparently complained about his chest pain to the cardiologist. But, in front of him the cardiologist wrote down in his note that the patient ‘denied any chest pain’. He did not suggest any medical checkup to ascertain his actual heart condition though he said that the accused was complaining about serious pain in his heart.

‘Due to the manner that the above medical checkup was conducted, the accused has serious doubt about the bona fide intention of the above doctors to provide necessary medical treatment to him. It appeared to him that it was a sham medical checkup only to show that the jail authority has complied with the earlier direction of this Hon’ble Tribunal,' the lawyer said.

He said that that the accused has the same medical complaints as earlier and that the medical treatment provided by the Jail authority is not sufficient. On 17th April his physical condition turned worse and as such the jail authority had to take him to PG Hospital where Dr. A. K. M. Asaduzzaman, Consultant Pain Medicine Unit found that he has 'frozen shoulder' in his self side.

At this point the Tribunal asked for any evidence to support this, and a medical note was given by the lawyers.

The Tribunal also took exception to a comparison the prosecution tried to make with how Salauddin Quader Chowdhury was treated, and said, 'You should be more careful in your drafting' The lawyer said that he would not rely on this comparison any longer. (Tt was not clear to me what this was about.)

He asked that the tribunal give the accused conditional bail so as to seek urgent medical treatment in a private specialized hospital.

Finally he asked that bail be given on the following conditions. Sayedee would:
- surrender his passport before the competent authorities;
- not apply for any travel documents without the prior permission from the Hon’ble Tribunal;
- reside at 914, Shahidbag, Dhaka - 1217;
- report to an agreed local police station on an agreed regular basis;
- not travel to any crime-base areas without prior permission from the Hon’ble Tribunal;
- not contact any of the Prosecution witnesses;
- not interfere with any part of the investigation process.

The lawyer also submitted that Mr. A. K. M. Mustafizur Rahman, a family friend is willing to provide surety of an agreed amount as a condition for bail.

He said, 'If at any time any of the bail conditions are breached, the Tribunal can withdraw bail.'

He said that the prosecution have argued that the current law is in line with the ICCPR, ICC and said that if this is the case then the lordships should provide bail.

There wss then a discussion about the extent to which the Tribunal had to follow the ICC or the ICCPR, with the Tribunal noting that it was a 'national court' Al-Amin said that Bangladesh was a state party and that these were 'persuasive authority'.

Rezaul Karim then spoke on behalf of the prosecution. He gave to the Tribunal some documents and maps, presumably relating to the investigation that they were undertaking.

He said that if there is any problem with the medical treatment, this could be provided by the jail, and pointed to a previous order given to Salauddin Quader Chowdhury who was allowed to go to a private hospital.'

There was a discussion about the significance of a 'frozen shoulder'.

He was asked how long before the investigation will be be concluded and they will be able to charge the accused and Karim said '30 days'

Karim said that in light of the seriousness of the allegations he should not be given bail. 9 months was not a long time in detention in these circumstances, he said.

In response, Sayedee's lawyer, Al-Amin said that seriousness of the allegation can not used as a reason to deny bail. He said that there was no prima facie case against the accused. And that if the accused breaches his bail conditions, bail can be withdrawn at any time.

There was a delay of about one minute before the Tribunal chairman read out the order (no discussion took place):

'The accused Delwar Hossain Sayedee, alias Delu, has been produced before this Tribunal. An application for bail on behalf his behalf has been taken up for hearing. Mr Tanvir Ahmed Al-Amin, learned counsel appearing for the petitioner, submitted that the accused petitioner was a renowned personality in his area, elected MP twice. He is in custody for about 10 months and being arrested on other cases. He is an old man, more than 70 years old. He is also a sick man and on last occasion when the he prayed for bail, the jail authorities had been directed to arrange medical treatment in PG hospital, and at the direction of the Tribunal, the accused petitioner was taken to the hospital and doctors attended him but one of the doctors did not give due consideration to the comments made by the petitioner regarding his illness and did not pay heed to him.

Also alleged that other doctors did not pay head to his statements regarding illness. As such it is argued that the accused petitioner will not get proper treatment at the hospital.

Legal counsel further submitted that the investigation agency again submitted a progress report about the investigation but no formal charge has been given, and he has been in custody for a long time. Further submitted that if enlarged on bail, he was ready to abide by all conditions imposed by the Tribunal. Also gave the address where the accused person would stay in Dhaka City if he was enlarged on bail, and will stay at the address of his own house and will not go to the area of the alleged activities.

AS such the learned advocate applied for enlarging the accused on bail, considering all these aspects.

In response to these submissions made by petitioner, Syed Rezaul Karim submitted that on last occasion, the petitioner's bail was rejected and there are no new grounds to enlarge him on bail. He also alleged that his case involves crimes against humanity and evidence is being collected by the investigation agency. Case diary and case map were shown to the Tribunal. Mr Karim also submitted that in cases involving crimes against humanity, accused are not normally granted bail, and only in exceptional circumstances can be enlarged but according to him the [1973] Act does not permit.

Lastly submitted that in case the petitioner not get proper treatment in PG hospital, a different hospital can be nominated.

We have heard the learned counsel and the petitioner and have given our anxious thought.

The petitioner is in custody for upto 10 months, after arrested in different cases and in this tribunal was shown arrested in August. The investigation is at the fag end as submitted by the prosecution.

In relation to health problems of accused petitioner we directed the jail authorities to take him to hospital, and this was complied with though some objections about the hospital treatment were made.

We do not find any new grounds for bail and when perusing the case diary we think prima facie case against him is present.

Without going into the details of the incident at the hospital, the accused petitioners should be taken to Barden hospital as chosen by the accused, and the cost of the treatment will be borne by the accused petitioner.

With this, the application for bail has been refused.

Also presented with a progress report and find that some progress has been done but that the investigation must be concluded without any delay. Direct the investigation agency to submit the investigation report as early as possible but if cannot submit within short time, must submit by 31 May.

May a copy of this order be given to Jail authorities for completion of directions to arrange treatment in Barden hospital at teh cost of the petitioner.

Comment
1. It seems increasingly difficult to justify the continued detention of Sayedee. He has been in detention, without charge for ten months. Prior to his detention, he showed no signs of fleeing the jurisdiction, and it is difficult to see how his flight is a real risk if his passport and other travel documents are taken away from him which the defence have offered, and he remains at an address which the police can guard and watch over. In relation to intimidating witnesses or interfering with evidence, there are a number of points. (a) Another of the accused, Alim, has been on bail and the prosecution has been no allegation that he has interfered with the ongoing investigation; (b) the crimes that Sayedee are alleged to have committed are in Pirojpur and not in Dhaka where Sayedee would remain if he was in detention and (c) if Sayedee was going to interfere with the investigation, he could just as easily do this through his many supporters from jail.

In the last order, the Tribunal stated, '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.'

It is notable that new order does not refer to this point as a reason to keep Sayedee in detention.

2. In its order, the Tribunal has failed to engage with many of the points that the defence has made. It has not said anything on the role of the international obligations. If the Tribunal does not believe that these apply to the Tribunal, then it should say this clearly; if on the other hand it thinks that they do technically apply but are not relevant in these particular circumstances, the Tribunal should explain this. But to remain silent indicates quite a failure of judicial consideration. Similiar points relating to international law were made in the last bail application, but again these were completely ignored.

3. However, this application again reflect the problem that the defence lawyers are not allowed to appeal the bail finding; all the accused can do is simply come back again and again to the same three judges!

19 Apr 2011: SQ Chowdhury interrogation request

This was altogether a rather extraordinary hearing.

Salauddin Quader Chowdhury was due to attend court in relation to an application filed by the prosecution seeking to remand him in the custody of the investigation agency for three days. Previously on 5 April and then 13 April, there had been similar applications relating to Motiur Rahman Nizami and Mojahid.

The last time SQC had been brought to the Tribunal was on 17 January 2011

I had spoken on 4 April, the day prior to his attendance in court, to his daughter in law on the phone who told me that he had not instructed a lawyer, and was likely to represent himself until any trial took place. Also she said that the US lawyer that he had sought to represent him continued to be refused a visa.

When I arrived at the court premises, there were lots of lawyers, some of whom I knew had been in court previously in support of SQC, standing around outside. I asked one, why he was not going in, and was told that the Tribunal would only allow about ten to go in. I said, 'Well, that seems a good number.' He said, laughing, 'No it is not'. So this is when I realised that the 'BNP lawyers' had decided to boycott the court unless all of them could attend.

When I went into the court, I saw, unusually, the Attorney General sitting next to the Chief Prosecutor. I went up to him and asked why he was present, and he said that there was no special reason but that there were now court holidays. 'I like to stay in touch with what is going on.' he said. Interestingly, though, SQC's daughter in law reminded me that the attorney general has gone to all three hearings in which SQC attended the tribunal, but not one in which any of the other defendents had attended.

We had to wait over an hour before SQC arrived, and when he did so, that was quite a sight. He was carried, prostrate, as though on a stretcher, by six police man up the step court stairs and in the to Tribunal. A previous defendent Alim had been given a wheelchair, which had made his entrance at least more dignified. SQC, though, was not given one. He was laid down inside the 'dock' on a number of chairs, with his legs pointing away from the Tribunal members. It was, it has to be said, a rather hapless site.

After the Tribunal members entered Zead-al-Malum began to argue in favour of their application that he should be remanded in the custody of an investigation officer for three days of questioning at a safe house in Dhanmondi, details of which had been gazetted.

He read out from the application a series of allegations against SQC including that he had formed the Al Badr, Al Shams and Razakers and worked with the Pakistan military and set up a number of torture centres in Chittagong. [more about this will be added in the next few days]

He told the tribunal that the investigation agency has collected documents and evidence including audio-video records, films and photographs on the offences allegedly committed by Salauddin Quader Chowdhury during the Liberation War.

Those documents and evidence needed to be checked by questioning him for a fair and effective investigation, he said.

He read out 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.'

He said SQC's interrogation 'is necessary and indispensable for the ends of justice.'

He then passed up the kinds of document that the Tribunal wanted to ask him about, which was from the 'East Pakistani government, 'fortnightly reports.

He confirmed to the Tribunal that this was just 'one of the reports' that they wanted to question SQC about. Malum said that there was also audio visual material.

He said that we need to interrogate him so that the prosecution can make a formal charge under Section 9(1) of the International Crimes Tribunal Act 1973

He was asked how many more days before they 'completed their investigation to allow a formal charge.' He responded by saying that he was at the 'end of the investigation'. When again specifically asked how many days, he said, 'Approximately 60 days ... Within 60 days we will file a formal charge.'

After the prosecutor sat down, the Tribunal chair then said, 'There is no engaged lawyer for the side of the accused person.'

SQC then said, 'I am representing myself'

The Tribunal chairman told SQC that if he wanted to say something he could.

He started by saying in a quiet voice, 'Chairman, I am not guilty' He was told by the Tribunal chairman to address the Tribunal as a whole.

He then made a statement, some of which was made in a normal controlled voice, but some of which was made in a very loud voice, at times shouting at the Tribunal or at the Attorney General.

'I was arrested on 15 December 2010 at 11 by the Rapid Action Batalion. From the moment of arrest - I would rather call kidnap - I was physically assaulted. I was taken away to an unknown place where I was physically tortured under 6.30 am. Then I was taken to some police station. Later I learned that it was in the cantonment. Then again officers assaulted me. Then they stopped and took away my blood soaked clothes and gave me new cloths. At 8pm some people took me to hospital to check me up.'

'During the torture, two doctors, who must have been government doctors, were present.'

'When taken to hospital, it was PG Hospital, I refused to be treated by government doctors and was then taken by officers of detective branch. Initially, these men were cordial but then they suddenly disappeared. Then RAB man again entered and announced who they were and started again to torture me all over again. You can see my legs, my loins.'

You say you are a Tribunal. I have not received a single piece of paper that shows that I am arrest by a legal process. I consider myself abducted.

If you go by the logic that if it quacks like a duck and looks like a duck, then it is a duck, then this place is a court. There are judges, there are prosecutors ....

Tell me does this gazette mentioned by the prosecution have my name in it, show me, show me.'

Tribunal then interrupted and asked that SQC respond to the application.

SQC then carried on and said, 'If you don't want me to defend myself ...' he then quoted from a novel. Then went on.

'You have not given me a single piece of paper. I have been detained for four months. I have had no doctors. ..... This is a mickey mouse court.'

The Attorney General then got up and said that 'This should not be allowed.'

Tribunal chairman said to SQC, 'You are allowed to respond to the application.'

Then SQC went on, 'If they want to question me, I do not have any problems with that. But it will have to be at the jail gate' He then said, 'I have not even been given copy of application.'

The Tribunal said, 'You have not applied for a lawyer'

SQC then said, 'I am representing myself. I am allowed to represent myself. Are you taking that right away from me. I have never asked for a lawyer. I am saying you can question me at the jail gate. And there is no question of lack of space. I am in a three storey building, in solitary confinement. I invite everyone in this court to come and see the interrogation.'

The Attorney General got up again and said, 'Enough of this pretending. He is not an ill person. An ill person does not raise his voice like that.'

The Tribunal chairman then intervened and said that they would adjourn proceedings for 30 minutes before making a ruling, and that in the meantime the accused would be remanded in custody.'

During this break I had a brief conversation with the Attorney General who left the Tribunal during this adjournment. I asked him what he thought about the proceedings. He said, 'It is all pretence. He has all the medical attention he wants at the jail.' I asked him about why he had not received papers, and he said, 'If he wants to represent himself he should file an application to the court.'

After the break, the hearing resumed without the presence of the accused, and passed the following order:

'Application filed by prosecution pressing for an order under rule 16(1) of the Rules of Procedure to commit the accused SQC in the custody of the Investigation Officer for the purpose of investigation for a period of three days.

The accused SQC has been presented in this tribunal by the jail authorities. Mr Zead-ul-Malum, learned prosecutor appearing for the prosecution submitted that for proper investigation of the case, the accused person should be committed to the custody of the Investigation Officer for purpose of investigation. He first submitted that the government has by a gazette notification established a safe house situated at Dhanmondi. He further submitted materials that had been collected by the Investigation Agency are required to be examined by interrogating the accused person. Further submitted that some research, photographs, newspaper, periodicals, magazines and tape recordings have been collected by the investigation agency which connect the accused person with the offence in question and for testing these documents, he is required to be interrogated for an effective investigation.

Further submitted that the investigation is at the fag end stage and if this application is not allowed, Investigation Agency will be prejudiced and as a result the whole investigation would be defective and incomplete.

Further submitted that the investigation agency has a right to interrogate the accused for getting a full picture of the occurrence and this right should not be curtailed in any way and as such prayed for the accused person in custody of the investigation agency for proper investigation.

Noone has been engaged by the accused, SQC, to appear on his behalf as defence counsel, however after submission by the learned prosecutor, the Tribunal asked SQC is he wanted to say something regarding the application.

On our asking the accused, SQC submitted that if there is remand is allowed it should be done at the jail gate not at the safe house. Mr SQC also stated something about his ill-treatment to him by the law enforcing officers , after his arrest.

He was laying in the dock posing as a sick man. It is a fact that he was brought here from KXXX jail and his health was ok. In the court room he pretended to be a sick man but the statement he made in court was so loud that clear to us that he is pretending to be sick and not actually sick. A sick man cannot possibly speak so loudly.

Before going into the merit of the case, want bring some facts forward. Today, by CCTV Camera we have seen a good number of lawyers refusing to coming to the proceedings. As earlier said in open court, there are a limited nubmer of seats in room and need to control number.

The accused Mr SQC has not yet engaged any counsel to defend him. We directed the law enforcers to allow ten to fifteen more lawyers as observers only. We have been told that about 50 lawyers wanted to enter and that everyone wanted to come, but there are not enough seats for that.

On earlier occasion, we sought the cooperation of the learned counsel. We express our disatidfction with the conduct of the lawyers. We can only say that we are sorry.

In the morning, the accused was brought to the Tribunal at 11.30 am although he was required to be produced by 10.30. This is not the first time. It happens each time. We direct the registrar to write to the ministry of Home Affairs and to superintendent of prisons to inform them of this matter so in future the accused is presented to the Tribunal on time in Tribunal without fail. Also asked the Chief Prosecutor to communicate the matter with the concerned authority.

In considering this case and on perusal of the papers submitted before us we are of the view that for proper investigation of this case, the committing of the accused person into the custody of the investigation officer for purpose of interrogation is indispensible.

Considering the gravity of this matter , we allow the petition, under the following conditions.

The accused SQC to be committed to the custody of the Investigation Officer by jail authority at designated safe house for period of one day only for purpose of interrogation by the investigation officer.

The Jail Authority will present the accused at the safe house at 10 am and remove him from the custody of the Investigation Agency at 5pm.

The Investigation Agency is directed to arrange a special room for interrogation with knowledge of engaged counsel.

The Investigation Agency is also directed to depute a doctor from the jail to stay in an adjacent room during interrogation and the doctors will be allowed to see the accused person at the interval time and allowed to conduct health tests of the accused when necessary

The investigation agency will inform the Jail authorities about the date and time of such interrogation.

The Investigation agency shall not put any pressure or threat on accused at time of interrogation and maintain privacy in the safe house.

The interrogation should be conducted in Bangla only so that the the accused and interrogator can understand.

The accused should be given opportunity to clarify anything to the investigation officer.

The Investigation Officer must at all time abide by 16(2) of the rules [This states: ‘No person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind.’]

With above condition the application is allowed

Let a copy of the order to sent to the Supt of Dhaka Central Jail and the Investigation officer

Accused is remanded in custody until further order and the prosecution is directed to provide progress report by 19 Jun 2011.'

Comments
A number of concerns about this hearing are summed up this article: What to do about SQC?

17 Jan 2011: SQ Chowdhury applications

This was the second hearing where Salauddin Quader Chowdhury (SQC) had been brought before the tribunal. See blog relating to the hearing on 20 December 2010 at which the Tribunal had passed an order adjourning the hearing so that his lawyers could gain powers of attorney.

I was not present at this particular hearing. This blog comprises extracts from the applications filed by SQC and from the Tribunal's order, along with press reports of what is said to have taken place at the hearing.

The Tribunal heard four applications filed by SQC: one for permitting him to attend parliamentary session and parliamentary standing committee meetings. Another for recalling the production warrant earlier issued against him; a third one for seeking the certified copies of case proceedings; a fourth one for giving him treatment in a specialised private hospital. There was also an application from the prosecution for his arrest and detention

Legal Representation
It appears that SQC did not instruct any lawyers to represent him in court.

Press reports suggest that at the Tribunal, Chowdhury sought the assistance of 20 lawyers. The Tribunal however is quoted as saying, "As per rules, if you (Chowdhury) file a petition, then you have to move it, nobody can assist you. If your lawyers file a petition, then they have to move. You can choose one of the two."

SQC is said to have responded by asking, "Under which rules, can I not get assistance from the lawyers?" He repeatedly requested the Tribunal to permit him to have lawyers assisting him, without instructing them.

In the Tribunal order it was stated: 'He himself wants to conduct his own case. No vakalatnama (power of attorney] has been filed by accused but wants 20 lawyers to assist him. He is at liberty to conduct his own case or to get his own lawyer .'

Attendance at parliament
In his first application SQC said that he was a sitting member of parliament and also a member of the public accounts committee, and of the parliamentary standing committee of the Ministry of Law, Justice and Public affairs.

He said that parliament has been summoned to sit on 25 January, and that he wants to participate in the session as a duty to his electorate, and that he needs to sign cheques necessary for his constituency. 'That as a member of parliament I have to sign a number of documents such as allocation of test relief projects to various ministers and directorates, sign checques from discretionary funds ...'

The application says that he has not been formally charged with any crime, and adds, 'I have neither been notified nor received any certified copies or any petition for my arrest nor any certified copy of any order from this Tribunal.' He adds that there is precedence for those appealing a conviction to attend parliament.

The Tribunal said that Chowdhury can seek permission from the High Court under the writ jurisdiction to attend parliament session. In its order it ruled:

‘As this matter does not come within the purview of the ICT we are of the view that this application is not entertainable in law for want of jurisdiction for the tribunal. The application is disposed.'

Recalling orders of issuance of Warrant of Arrest and production warrant
This second application states that section 11(5) of the 1973 International Crimes Tribunal Act only allows a warrant of arrest to be issued if that person has been 'charged' and that rule 2(5) of the Rules of Procedure defines 'charge' to mean, 'the accusation of crimes against an accused framed by the Tribunal.' The application goes onto say that since no charges have been framed an arrest warrant cannot be issued against him. It adds that Section 16 of the Act sets out what is required to constitute framing of charges, and that this has not been done.

The application also quotes Rule 30 which states that 'After cognizance of an offence is taken, the Tribunal shall issue process or warrant, as it thinks fit and proper ..'

It also refers to the forms annexed to the rules of procedure which suggest that warrants of arrest can only be issued after an accused person has been charged.

The application also states that 'There is no cogent evidence to show that I ever posed any threat to the prosecution team or any individual whilst the prosecution team was in Chittagong looking for clues against me ...'

He is reported to have said in court that detaining him in this manner would be ultra vires (beyond the power) of the ICT Act, 1973 and that the rules 6 and 9 of the Rules of Procedure under which authority the Prosecution sought custody warrants against him, are contradictory with section 11 of 1973 Act.

[This is the same argument that the defence lawyers for the Jamaat-e-Islami accused had argued but which the court rejected (see point 3 and comments at end) without giving any reasons..

The prosecutor, Zead Al-Malum argued that SQC should be kept in custody.

He said, “Chowdhury committed, and led others to commit the crimes mentioned in the section 3(2) of the ICT Act, 1973.”

Malum stated that Chowdhury snatched weapons from the Pakistani soldiers and shot to death Natun Chandra Singh, founder of Kundashwari Oushadhalay in front of a temple in his residence, killed 35 persons in Jagatmallopara and another others 69 in Unashattorpara in the port city.

Led by SQ Chowdhury, Malum stated that under this direction the peace committee, Razakars and Al-Badar were formed and committed genocide against the Hindus and the believers of Bangali nationalism. He said that Chowdhury is the son of Fazlul Quader Chowdhury, the then chief of East Pakistan Muslim League. During the nine-month Liberation War, their Good-Hill residence became a torture cell, Malum said.

A probe into crimes against him is going on, Malum said. Some documents have already been found; if he is arrested and interrogated, more information about him can be found. Moreover, he said, the witnesses are in fear of Chowdhury.

Malum also alleged that Chowdhury could flee abroad if he remains free, and so he should be kept in custody for effective investigation.

SQC refuted the allegations made by the prosecution

He requested the judges to look into how many Hindus were sheltered in Gool-Hill during the nine-month war.

The BNP leader claimed he was not involved in politics before joining Bangladesh Muslim League in September 1979.

“No allegation against me had been reported in the media before I joined Bangladesh Muslim League. People had elected me parliament member six times because I am innocent. I plead not guilty,” he claimed.

The Tribunal rejected the defence application relating to the unlawfulness of the arrest warrant. In relation to this, the order read:

'A similar application was filed in this tribunal by another incumbent, Nizami and others seeking same relief and upon considering legal position, it was rejected. We do not find any new reason to differ with that order.'

In relation to the prosecution application for detention, the order reads:

'An application was made under section 6 and 9 of the 1973 Act. The prosecution presented evidence of SQC's involvement in crime. During the investigation Mr Chowdhury himself in audio has threatened witnesses, as such he is required to be detained for effective investigation

SQC says that he was not present in the country for most of 1971. He says that he was not a member of any political party. He joined the muslim league in 1979. He is accused as he is son of his late father.

We note that that he is alleged to have been involved in the killing of Nuton Chandra Sinha, 35 people and 69 people in 1971 and that he made threatening statements captured in audio and visual. We are not going to decide on the truthfulness of the allegations.

He should be detained for a considerable time in order to complete a fair investigation until 19 April.

Let a copy of the allegation report submitted by investigation agency to the prosecution as annexed with the petition be served upon the accused SQC for his perusal.

Copies of certified orders
In the application, SQC said that an order was passed on 30 December 2010 by the Tribunal but he has not received a copy of it. Nor has he received any copies of applications filed by the prosecution. 'I have not even been informed the content of the application filed by the prosecution ... that without certified copies of records ... I would not be able to defend myself effectively on the present matter which would impede the requirements of a fair trial.' [This is similar to a previous application relating to Nizmai and others (see blog link above, point 4) which was rejected.]

The court told Chowdhury that he would not get a copy of the court's orders - only the final judgment, through which he can appeal to the Appellate Division. Chowdhury would also get all documents of allegations against him after formal charges were framed. The Tribunal order stated that:

'This petition also filed previously by Nizami and others that was earlier rejected as there is no procedure to supply certified copies of interlocutory order of this Tribunal. However when trial comes then he will be supplied with the copies of the document required for the trial in order to prepare his defence.'

Application to be sent to a specialised hospital for treatment
In his application, SQC claims that about 15 Rapid Action Battalion, and Detective Branch police came to his house in the early hours of 16 December, and he was 'tortured' for six hours. A doctor was also present at the time. He claims in the application that the torture included:
- repeated beating to the face and head with boots while being pinning down by people standing on his chest;
- repeatedly hitting the heels of his foot with a bat until the bones in one heel broke;
- slitting the right side of my stomach several times with a blade;
- putting tools on his toenails with tools until they were partly ripped off;
- tying him to a chair and taking turns in kicking his entire body with boots and bearing with bats;
- pouring cold water into his nose while holding his mouth shut inducing vomit
- repeated hitting of elbows with a bat;
- holding his mouth and nose shut until he almost fainted
- electrocuted on the private parts of his body.

During this period, the application says that he had to be revived three times. He was then taken to Bangubandhu Sheikh Mujib Medical University Hospital at 6.30 am, where doctors revived him and recommended that he be moved to ICU. He then says that he was taken to Detective Branch HQ at about 7.30. He says that some reporters had taken some video footage of his bloodstained clothes at the hospital.

The application goes on: "After arriving at the DB headquarters, the officers ordered me to wash all the blood off my body and change my bloodstained clothes I refused to do so. The officers handed over me to the Detective Branch police in the DB HQ and left. At approximately 8 am, some of the same officers came back to the DB HQ with some more officers who introduced themselves as members of RAB. They carried some of my clothes with them. They ordered the Detective Branch policeman that they be left alone with me. At this time, the proceeded to beat me for an hour tying me down and administering punches and kicks all over my body. They ripped off my bloodstained clothes and ordered me to wash my body. Finding me unable to stand, they carried me to the washroom and hosed me down. Two officers assisted me in putting on fresh clothes after which they tied me down again and began punching and kicking me for a second time, this time for one and a half hours. Finding it necessary to change my clothes once again due to the bloodstains on my new clothes, they carried me to the washroom again, hosed me down again, and helped me to put on fresh clothes. After this they made me sit on the ground while they continued their verbal abuse. I asked for water which they gave me after aproximately one hour. While my ears stopped bleeding, the officers had trouble stopping the bleeding from my nose. One officer kept wiping my nose intermittently until the bleeding stopped. Around midday the officers noticed that I started hyperventilating.'

The application goes onto say that the DB asked his family, who were outside, whether he took any medication, but they refused to assist the police as it was their responsibility.

The application says that later that day he was taken to the Chief Metropolitan Magistrate where the police sought ten days remand. His lawyers told the magistrate that he had been tortured. SQC was also allowed to speak at the hearing, and 'I showed the learned court blood stained marks on my trousers and I was unable to stand unassisted.'

The application says that after the hearing, he was tortured four more times by electrocution.

On 22 December, his lawyers filed an application before the magistrate to be sent to BSMMUH for treatment, and he was taken there on 4 January, but did not get proper treatment, the application claims.

At the Tribunal, SQC is reported to have said, "I am a heart patient. Torture in jail has worsened my condition. I had electric shocks for two hours and at the same time they checked level of my blood pressure. They then again I was shocked repeatedly."

"I need to be in a specialised private hospital. I have no confidence in public hospital," he said

In its order, the Tribunal stated:

'On an earlier occasion a writ petition was filed by wife in high court with the same prayer. Order to send him to hospital was stayed by appellate division. The Supreme Court is dealing with this matter and so we are not in a position to deal with this matter. We direct the jail authority to provide necessary treatment to the accused in accordance with the jail code.'

Comments
1. Again application setting out arguments why warrant of arrest was 'ultra vires' rejected without providing any reasons.
2. Detailed torture allegations provided by SQC not even referred to in the order, and no comment of any kind made by Tribunal members;
3. Again notable that Tribunal refuses to give certified copies of its own orders even to the accused. Why is this? I have been told by a source in the Tribunal that it is to prevent the accused from going to the High court to challenge the orders. I don't know if this is true. But there can surely be no reason why the Tribunal does not give copies of orders relevant to them, to the accused. Indeed it remains unclear why the orders are not made public.

13 April 2011: Interrogation revision

Background
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.

Hearing
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.

Comment
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?