This blog post deal with the first three issues. The bail application is dealt with in a separate blog.
The Tribunal chair first asked that all applications be submitted before 3pm. ‘If we receive any documents after 3pm we will treat it like we got it a day later,’ he said.
Progress Report of investigation into Nizami, Mujahid, Molla and Kamaruzzaman
The prosecutor, Rezaul Karim told that Tribunal that ‘There has been a very good progress in the investigation. An investigation report was done by investigation officer Abdur Razzak Khan.’ He said that Nizami and Mujahid had been interrogated and Molla and Kamruzzam had not yet been taken into remand for interrogation.
He said that photographs, newspapers, books, video, and other evidence has been collected by the investigation agency. Scrutiny of the information gathered from the investigation/interrogation of Nizami and Mujahid is going on.
‘So, there has been a lot of progress. There was evidence found that atrocities happened under their command. Now, it is necessary to interrogate Molla and Kamruzaman’.
The tribunal chair commented that Nizami was quizzed on 5 May and Mujahid on 8 May, and asked ‘So it has been more than 20 days, what took you so long to submit the progress report?’
The prosecution said that many things that happened in the meantime. Delwar Hossain Sayedee and Salauddin Quader Chowdhury were interrogated and the investigation officer has also been busy.
The Tribunal chairman then said that at different points of the report it says that 'we are “trying to do”, “will try to do”, It’s been so many days and still it says things “under process”, “we are trying” etc.' He asked why they are not doing things more quickly. Karim responded by saying that ‘We’ll do it very quickly. We won’t take much time.’
The Tribunal chairman said, ‘We shall not allow an indefinite period.’ The prosecutor said, ‘The hard reality is that it is not easy. Let’s say there’s a witness. We go to his house to find him; we come to learn that he went to his in-law’s house, or to his village, or somewhere else. We just can’t reach them.’
The Tribunal chairman said, ‘Considering all this, we are saying again, indefinite time won’t be allowed. The first order was passed on 10 August, 2010.’
The Tribunal then asked Abdur razzak, the investigation officer to come forward.
One of the tribunal members asked him how long he thought it would take to finish the investigation, and Razzak answered that he needed 60 more days.
Tajul Islam, for the defendents then said a few words. He said the defence had only seen the application, not the investigation report. ‘The application does not say any of these things. It just sets out the elements of the crime committed.’ He said that he did not think that there had been any significant development. He added that, ‘In a case like this, time is needed to investigate. In some cases, internationally, it can take five years. It is not appropriate for the court to fix a time frame for the investigation.’ He argued that compelling the Investigation agency to speed up their investigation might prejudice both the parties. ‘It might take a long time to be fair,’ he said.
The court then made a ruling:
‘Today’s is fixed for filing investigation report or its progress report. The prosecutor has filed a progress report showing progress in investigation of case. In the progress report it is stated that the investigation is at the verge of completion and they need some more time to make it complete. It has also been stated that to complete the investigation they require time to interrogate the remaining two persons Mohammed Quamaruzzaman and Abdul Kader Molla by the investigation officer and after completion of that expect that will be able to submit the report.Application seeking remand for interrogation of Molla and Kamaruzzaman
We heard Syed Rezaur Karim learned prosecutor in this regard and also Tajul Islam who appeared for the two petitioners.
Having considered the submissions made by them, we are of the view that some more time is required by the prosecution for completion of investigation and as such prayer is allowed. Let the matter appear on the list on 12 July, 2011 for the submission of report. In case they fail to submit a report, they have to submit progress report on that date. The detention of the accused is extended till that date.’
Mr Mokhlesur Rahman Badal for the prosecution spoke. He said that he was requesting a 3 day remand to interrogate Molla and Kamruzaman for the sake of proper investigation.
The Tribunal said that he should first argue in relation to Kamaruzzman, and then separately for Molla.
The prosecutor said: ‘The accused are now in front of the court for the brutality committed in 1971. Molla was an Islami Chaatra Shangha (ICS) leader in 1971. Nizmai and Mujahid were also ICS leaders. They were involved in war crimes, killing, rape, arson, etc. The people of Bangladesh know about their involvement in the atrocities during 1971. Evidence have been collected and our investigation officers have interrogated them. To scrutinise all the collected information and to finish and submit our progress report we now need to interrogate Molla and Kamruzzaman.’
‘This is very urgent and important. Defence might say they are feeling insecure. But the accused were taken to a safe home, given safe custody which maintained an international standard. All the investigation has been done conforming to the international standard. So, we urge you to allow us to take Molla and Kamruzzaman in 3 day remand to interrogate them keep the investigation process going successfully. The judges will decide if it is indispensable or not.’
Tajul Islam for the accused then spoke. He said that for a short time he forgot if he was in ‘Paltan ground or in a courtroom’. What he said was ‘not a legal petition. They have to substantiate how, where, when crimes were committed. He is just saying that these people committed these crimes. It was a vague political application. For a committal into custody, this cannot be allowed.’
He then read out Rule 16.
“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, 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 word ‘indispensable’ is a significant word,’ he said. ‘The prosecution must show that remand is indispensable. Nothing has been shown that unless interrogation takes place, cannot complete investigation. The requirements of law are not yet fulfilled. The application is full of emotive language. There is no specific allegation.’
In the application filed by Islam, the following was stated, though this was not read out in court:
‘As such the Tribunal is required to be satisfied that – (i) for the purpose of proper investigation, interrogation of the Applicants is “indispensable” and (ii) 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. The Orders of the Tribunal dated 5th and 13th April 2011 also do not refer to any materials or evidence.Islam then said that the prosecution call it a ‘safe house’ of ‘international standard’. In fact, he said, ‘it is not of any standard’. He then referred back to a 2002 High Court decision (referred to in previous hearings, see blog) which required that there should be a piece of glass between the accused and the interrogators and that the questioning should take place in sight of the accused lawyer. ‘There is a mandatory duty on the prosecution to produce such a room like this. The Tribunal can pass an order like this. Since this is a decision of the appellate division, it is binding on all of us.’
The Prosecution has not referred to any material that indicates that the interrogation of the Accused Petitioner is necessary for proper investigation. The Investigating Officer has not referred to any documents, materials or evidence on the basis of which he has applied for custody of the Applicants. Only general allegations were made against the Accused Petitioner. Such allegations were not supported by materials or evidence. There was no reference to any document or witness in such general allegations. It is clear that the interrogation in the custody of the investigating officers is merely a fishing expedition.
That moreover the Prosecution failed to disclose why interrogation of the Accused Petitioner is necessary in the custody of the Investigating Officer. The Accused Petitioner 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. Neither the Investigating Officer nor the Prosecution has made out a case as to why interrogation in the custody of the Investigating Officer is indispensable.
Furthermore, although the Accused Petitioner has been in custody for almost 10 months, no report has been filed by the Investigation Agency as to the status of the investigation. The Prosecution has made general allegations of commission of offences against the Accused Petitioner under the Act which have not been substantiated by any evidence. As such, there are no grounds for committal of the Accused Petitioner to the custody of the Investigation Agency for interrogation
He then said that he was making some additional submissions relating to Kamruzzamn. Reading from his written application, Islam said that the presence of a lawyer during the interrogation is indispensible so that no verbal or physical abuse happens. He said that on 5 May ‘Motiur Rahman Nizami was taken into remand by the Investigation Agency in the so-called ‘safe house’ in Dhanmondi, Dhaka and was verbally abused by the Investigator, Mr. Abdul Hannan in a most humiliating and degrading manner. The Investigator failed to take into consideration the high social status of the accused petitioner and his position as a former Minister while conducting the interrogation. It is also stated that Mr. Salahuddin Quader Chowdhury, who has also been detained in connection with war crimes, has also been verbally abused at the ‘safe home’ in Dhanmondi by the Investigating Officer, Mr. Abdur Rahim.
The Tribunal chairman then asked why he was talking about Chowdhury. ‘You can’t talk about him here. He is not related to this tribunal.’ he said. Islam responded by saying, ‘I’m not representing him. We are just trying to say this has a relation with our case.’
Islam then continued and said that, ‘On 13th July 2010, the Petitioner was arrested by the Police and taken on remand in connection with a number of criminal cases. During remand, the Petitioner was taken to the CID Office at Malibagh, where he was severely tortured by the Investigating Officers. It is specifically stated that a sandal was forced into the mouth of the accused petitioner during interrogation and thereafter the investigating officer slapped him twice on each side of his head. Such humiliating and degrading physical torture was inflicted upon the accused petitioner solely with a view to unlawfully extracting information from him.
He added that, ‘in view of the past conduct of the Police during remand at CID Office and in view of the persistent misbehaviour of the Investigation Agency during the interrogation of Mr. Motiur Rahman Nizami and Mr. Salahuddin Quader Chowdhury at the so-called ‘safe house’, the petitioner seriously and justifiably apprehends that he may be subjected to similar torture at the ‘safe house’. As such, the petitioner prays that the Tribunal passes an order directing that a lawyer be present within the sight and hearing of the Accused Petitioner during the course of interrogation. This is to ensure that he is not abused and tortured as the police and investigators have already shown themselves capable of both. In the alternative, the Petitioner prays that the interrogation be conducted in a room with a glass window in the sight of the Petitioner’s counsel.’
The Tribunal chairman said that the incident referred took place before the accused was in the jurisdiction of the Tribunal. He said that if a person under our custody is touched, ‘we’ll take it very seriously.’
The tribunal chairman continued, ‘This is the first time, any tribunal in Bangladesh passed the order for presence of lawyer (in adjacent room). You should talk about things, present facts under jurisdiction of the tribunal.’
Ali Haider for the prosecution then got up. He said that the safe home is a creation of law. No specific method actually exists and every arrangement was done according to the tribunal’s guidance. So it is not compulsory to have a glass wall, he argued.
He said that every person who is acquainted with the facts and circumstances of these incidents (atrocities in 1971) has ‘to be asked about them. This is an indispensable part of the trial. That’s why we have to question Kamruzzman and Molla.’
Islam then got up and said that that he understand that the prosecution had allegations, but said that they had to substantiate their allegations.
The prosecutor then submitted his application arguing that Mollah should be interrogated, which was very similar to his application relating to Kamruzzaman
The lawyer for Mollah, Advocate Mr Ahsan Kabir then stood up and cited rule 16 (1) again and the need for the tribunal to find that detention for questioning for ‘indispensible’.
‘There’s no description of any specific crime. It is only said that they committed atrocities in many places in the country, this place, that place etc. But nothing specific is being said,’ he said. ‘The rule is not applicable for Mollah,’ he said.
The lawyer, reading out from the application stated that, ‘On 13th July 2010, the Petitioner was arrested by the Police and thereafter taken on remand in connection with a number of criminal cases. During remand, the Petitioner was taken to the CID Office at Malibagh, where he was subjected to verbal abuse by the investigating officers.’
He argued that because of this – and the experience of interrogations by the Tribunal investigation officers into the other accused - lawyers needed to be present at the interrogation.
He also said that if interrogation does take place a glass wall should be placed between the investigator and accused, and that more time should be given to the accused to finish his prayers and lunch. He also said that he would also like to have the right to consult his client during the recess to check if there was any duress or coercion.
The Tribunal chairman asked whether the accused previously during interrogations had been able to eat and say their prayers, and the lawyer said yes they had.
The Tribunal chair read out section 16(2) again and said, ‘There is no provision for a doctor, glass door etc. But we have provided doctor and we also allowed presence of the counsel.’
One of the Tribunal members said, ‘This is a domestic tribunal dealing with international crime. You are talking about international standards and other things, but it depends on us, how we give the orders. We have been very generous, but if you try to put pressure on us and try to get everything, it’s not appropriate.’
The Tribunal chair then read out the order:
‘Two applications have been filed by the prosecution relating to two accused persons namely Kamruzzaman and Molla for for placing them in custody of the investigation officer under rule 16(1) in order to interrogate them are taken up for hearing.
Mr Mokhlesur Rahman, learned prosecutor submits that for proper investigation of this case the two accused persons should be committed to the custody of the investigation agency for the purpose of interrogation in the safe home as mentioned earlier. He further submits that the evidence collected by the investigators are required to be examined by interrogation of the two accused persons. He further submitted that some reports, newspapers, photographs, magazines, tape recording have been collected by the investigators which will connect the two accused persons with the offences in question and for testing them they are required to be interrogated for effective investigation. He further submits that if interrogation is not allowed, the investigation authority be prejudiced and the whole investigation will be defective and incomplete and as such he prayed for committing the accused persons to the custody to the investigation agency for proper investigation.
On the other hand Tajul Islam and Mr Ahsan Kabir, appearing for the two accused stated that the accused persons are in custody by order of the Tribunal for a long time and at the fag end of the investigations it is not at all necessary for the investigation officers to take them to custody for interrogations. Further submitted that if prayer is allowed they will be highly prejudiced as there is a chance of ill treatment by interrogation of them and the alleged safe home is not at all safe for them and accordingly the prayer should be rejected.
We have heard learned prosecutor and learned counsel for the accused person. We have allowed earlier prayer under rule 16(1) under certain conditions. We do not find any reason to take a different view in the matter for these two accused. As such we are inclined to allow interrogation on same conditions, mentioned herein.
The investigation officer is directed to arrange a special room for interrogation in the safe home informing the engaged counsel at least 48 hours before interrogation and the learned counsel are allowed to be present on the adjacent room where the interrogation will take place.
The investigation officer is also directed to inform the jail superintendent Dhaka in writing requesting him to depute one doctor of central jail hospital to be present with the counsel in the adjacent room where the interrogation is being held. They will be allowed to see the accused person at the interval time of such interrogation and the doctor is also permitted to examine the health condition of the accused person.
Two separate dates must be fixed for interrogating the accused person.
The Investigation officer shall not put any pressure or threat upon the accused person at the time of interrogation and maintain privacy in the safe home. The accused must be interrogated in his language, i.e. Bangla, so that he can understand the questioning and give a reply and that at the conclusion of the interrogation or questioning, the accused person must be offered the opportunity to clarify anything he has said before the investigation officer must follow and abide by the rule 16(2) of the rules
The prayer of the investigation officer is allowed for one day interrogation from 10 am to 5pm with a gap of 1 hr between 1pm – 2 pm for saying prayer and lunch. The petitions are allowed.
Application by witness to have lawyer present during questioning
Advocate MK Muraduzzaman then rose and said that he was appearing on behalf of Dewan Sirajul Islam who was asked on 23 May to appear for questioning. He said that his client requested that he, as his lawyer, be allowed to be present during my questioning. He said that his client feared that he would be tortured and had been issued notice without having a reason.
The Tribunal chairman asked the lawyer how does his client, ‘Apprehend that he will be tortured? [Your client] is not an accused, [he is] a witness. You are thinking even before the interrogation that your client will be tortured.’
The lawyer responded by saying that, ‘Qhat was said in the media and the newspapers about the other interrogations is making my client feel that way.’
One of the tribunal members read out section 8(3) of the 1973 Act which states: ‘Any Investigation Officer making an investigation under this Act may, by order in writing, require the attendance before himself of any person who appears to be acquainted with the circumstances of the case; and such person shall attend as so required.’
A prosecutor also stood up and mentioned rule 16(2) of the rules of procedure which states, ‘No person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind.’
The tribunal chairman then said, ‘He is not even an accused. He is a witness. We are assuring you no one will touch him. You don’t have to worry.’
He then said that the application was summarily rejected, and the following order was passed.
‘An application filed by Dewan Sirajul Islam Matlib for allowing his counsel to be present at the time of examination by the investigating agency is taken up for hearing.Comment
Learned counsel MK Muraduzzaman said that he had been notified by the investigation agency to appear before them for the purpose of examination. He has got no objection to be present, but he wants that during the time of questioning his lawyer should be present.
Admittedly, the applicant is not accused. He may be required to be examined by the investigation agency for the purpose of examination. We do not find any reason to direct the investigation agency to allow counsel to be present, as so such, application stands rejected.’
It is interesting to note that the accused lawyers were encouraging the tribunal not to lock the prosecution into a particular time frame for completing the investigation. Whilst they point to fact that these kinds of investigations take a long time to do well, it would also suggest that the defence lawyers are quite happy for the process to be delayed.