Prior to dealing with these issues the Tribunal raised two initial points - one relating to an article in the Daily Sangram, and another relating to criticism of a press statement given by Toby Cadman, a British barrister who is part of a team of lawyers representing the Jamaat-e-islami accused.
Report of Daily Sangram
Right at the beginning of the hearing, the Tribunal chair said that he has some issues he wanted to address.
He asked whether Mr Shahidul Islam, reporter of The Daily Sangram, was present and asked him to come forward. (Daily Sangram is known as a jamaat-e-islami paper)
The Tribunal then mentioned a report was published in the Daily Sangram which claimed that the Tribunal members held a two-hour ‘closed-door meeting’ with some people. (It was not clear exactly with whom it was alleged that the meeting was supposed to have taken place, but the journalist subsequently said that the article had alleged that the meeting had taken place with: AK Khondker (an AL leader); M. Hamid, a TV Producer, and members of the sector commander forum, General A Harun and General Shafiullah), The Tribunal chair said, ‘Where did you get that information? Who instructed you to write this report?’
The journalist initially did not say anything, but after being asked again by the Tribunal chair said, ‘Earlier, there was this similar kind of report published in another newspaper. I saw the report and did mine.’
The Tribunal chair then said, ‘We have good relationship with lawyers -- counsels and prosecutors. I know Mr Tajul Islam, sometimes we have tea together in my room and we chat -- is this also some kind of closed-door meeting? You think you can write whatever you want? Is there any basis to your reporting?’
‘You have to apologise to the lawyers and the judges in The Daily Sangram saying that what you published was wrong and baseless.’
Criticism of Toby Cadman (British barrister instructed by Jamaat defence lawyers)
The tribunal chair then asked Tajul Islam, the defence counsel, to come forward.
The Tribunal chair then said, ‘This is the age of internet, isn’t it? We are connected to the whole world through internet. What we say, what we do, every piece of information is available online. There was a foreigner who came to this court in the hearing as an observer. We gave him the permission to appear here. Although he is a foreigner we gave him the chance after special consideration. Before leaving the country he did a report on the hearing. It was mentioned that if any Bangla translation was needed one could contact Mr Tajul Islam. That means Mr Tajul has a professional connection with him, and later Cadman admitted that he was not an observer, he was an adviser to the defence.'
Islam replied, ‘Yes, he was’.
The Tribunal chairman then read from a statement that Cadman had issued on 6 May 2011. 'Persons arrested on the basis of reasonable suspicion of having committed a criminal offence are also entitled, under international law, to a number of additional safeguards. For example being brought promptly before a judge, being provided with information detailing the nature of the allegations, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application. None of these rights have been made available.’
Then the following exchange took place between the Tribunal chairman and Islam.
Tribunal: Was [the accused] not brought in front of this court as early as possible after issuance of warrant? Answer me.’
Tribunal: ‘….being provided with information detailing the nature of the allegations – was he not provided with this?
Tribunal: ‘lastly, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application, didn’t you do it?
The Chairman then said ‘If all those four cases were taken care of, how could he say, “None of these rights have been made available.”?
‘And, he said if anyone prefers Bangla translation Tajul Islam could be requested. Who is this Tajul Islam? ‘ ‘It’s me’ said Islam..
He then asked the lawyer why he did not do anything about this. One of the other Tribunal members then said, 'Mr Tajul, as a Bangladeshi citizen, do you think such comments from a foreigner are acceptable? A person who is not a part of this prosecution and tribunal shouldn't write anything like this, and as a part of [the Tribunal] you should have replied.'
Another tribunal member said: ‘Can we comment like this on a British citizen or against any other country? Are we allowed to say anything against a foreigner? We have sovereignty. We can talk about ourselves, but not a foreigner -- just like we can’t comment on a foreigner or other country.’
Islam said, ‘It was his opinion. It was his responsibility. I don't take any responsibility.
The Tribunal chair then said, ‘Didn’t it strike you? At least as a citizen, law abiding person of this country, you should have defended the tribunal. You have to defend the law; you have to defend the tribunal.’
Islam said, 'It is his responsibility. I don't take any responsibility … I have nothing to comment on this.’ The Tribunal then said, ‘But you should have defended the tribunal.’
The Chair then asked Islam to continue with the hearing.
(See comment at end of blog),
Application for improve transportation
The first application related to seeking improved transport to and from the prisons to the court. He said that the four accused - Mr Motiur Rahman Nizami, Ali Ahsan Md Mujahid, Md Kamruzzaman and Abdul Kader Molla - all had different ailments which had been discussed in an earlier hearing. Islam then summarised what these ailments were. (see hearing on 21 May)
He said that on a number of occasions the accused travel in vehicles which are ‘unfit to be driven’ He said that there were no windows, just a gap at the top of the vehicle. He said that rain and dust come into the vehicles. He said that the vehicles were very cramped with accused having to sit sideways, and that the seat were sometimes broken.
He said that taking into account their health and old age, they were seeking an ambulance or other vehicle to be provided, which the accused will pay for.
There was then an exchange between the Tribunal members and Islam.
A tribunal member said, ‘The tribunal can’t decide if some one is sick or not. It’s the doctors’ duty. Now, you are saying [the accused] are sick, and you need ambulances as their transport, as moving them from place to places with prison vans has been detrimental for their health. I have to say noone can avoid jerking and traffic in the road.’
Islam said. ‘We need an ambulance because the sitting arrangement is really bad in the prison vans.
The chairman then said, ‘We can’t pass an order on which type of vehicle should be used because there are security issues. Using an ambulance could prove to be unsafe for the accused. Who will take the responsibility? Prison vans are at least secure, but ambulances are not.’
Islam said, ‘But the prison van’s condition is absolutely terrible.’
The Tribunal chairman then said that, ‘Unfortunately, we can not compromise with the security issues that are concerned. We will strongly ask the concerned authority and issue a caution, so that the accused are taken care of properly. The authorities have to consider the condition of the accused, and upon considering their health, they can choose the type of vehicle to be used.’
The Tribunal then passed the following order:
‘This is an application filed by Mr Motiur Rahman Nizami, Ali Ahsan Md Mujahid, Md Kamruzzaman and Abdul Kader Molla, praying for transportation of them by an ambulance or any other similar motor vehicle. We have heard the learned counsel and perused the application.Medical treatment application
It appears that considering the health condition of the accused persons earlier different orders were passed authorising specialised food and treatment in BIRDEM hospital.
Mr Tajul Islam submitted that the prison vans by which the accused persons are transported from one place to another being not “health-friendly”, and as such the accused persons, being patients of different diseases and feeling uncomfortable while they are being transported, and as such for their comfortableness, an ambulance or different vehicle which is more comfortable for aged person than that of prison vans may be allowed and prison authorities ought to be directed to arrange such things even at the cost of the accused person.
Mr Haider Ali, learned prosecution appearing for the prosecution submitted that prison authority is authorised under law to arrange vehicles if at all required and for that prisoners need not pay cost. Further submitted that order from the Tribunal would put the prison authority in embarrasment, and it is the responsibility of the prison authority to decide what kind of vehicles to be provided for comfortable transport of accused person.
We already passed an earlier order that the accused persons are aged and some signs of ailments are available, also ordered specialised food and transfer to hospital as and when required. We are of the view that it’s the prison authority’s duty to provide the accused proper vehicles, which are required for their comfortableness whilst they are transported. As such we direct prison authority to look after the health conditions of the accused person and provide them vehicles which are health friendly when they are transported from one place to another.
With this direction, the application is allowed.’
Mr Tanvir Ahmed Al-Amin, the lawyer acting for Sayedee then stood up and the court said that they would pass a similar order for him.
Sayedee’s lawyer then sought a revision of an order relating to his medical treatment. He told the Tribunal that the accused was taken to BIRDEM the previous day. 'He was first taken to the Arthritis department and tested, and then he was taken to the diabetic department and that was fine too. But, when he was taken to Ibrahim Cardiac Hospital for heart condition, the doctor said, “We are not in a position to treat him. Because the court order says BIRDEM but we are Ibrahim Cardiac. If the court doesn’t directly order us, we can’t treat him.”'
Al-Amin said that the Diabetic Organisation Bangladesh is the mother organisation of BIRDEM and ICH. And for clarification, he asked that the order be change so that it includes Ibrahim Cardiac Hospital.
The Tribunal chair said, ‘This is outrageous. A doctor is bound to treat his patients. What if the accused breaks his leg and he is taken to Mitford Hospital – would they say, we don’t have our name in the order so we won’t treat him?’
He added, that the prison authority can decide where to take the accused, whether its BIRDEM or Mitford, but a doctor can’t decide which patient to cure and which not to. ‘How can a doctor says this? This is unbelievable,’ he said.
Al-Amin said that he was not going to disclose the doctor’s name, as the patient has to go to the hospital, and his life depends upon his treatment.
The Tribunal passed the following order:
‘This is an application to direct the direct jail authority to comply with the direction dated 20.04.2011 regarding medical treatment of the accused petitioner. Mr Tanvir Ahmed Al-Amin learned counsel appeared for the petitioner submitted that the application was filed on 8 May 2011 but after filing on 15 May 2011, accused petitioner was taken to BIRDEM hospital and given treatment and further submitted that as also had cardiac problem he went to cardicac hospital for treatment, but that the doctor denied giving treatment as the court order only stated BIRDEM hospital and not cardiac hospital and these are separate entities.The tribunal chair finished the hearing by saying that he has something to say to the reporters. ‘You should be careful while speaking in the TV. We observed that you say some incorrect things there. This is not right.’
Mr Syed Rezaur Rahman, learned prosecutor, said this is a technical error of doctors. According to him, when name of BIRDEM is mentioned, the doctor of cardiac hospital could have given the accused treatment. In matter of giving treatment the prosecutor did not raise objections.
Having heard submission, we direct, the words, Ibrahim Cardiac Hospital and Research Institution, be inserted after the words BIRDEM hospital in the order dated 20.04.11 so the accused petitioner may get treatment at the cardiac hospital if necessary. The prison authorities are directed to arrange treatment to the accused petitioner as and when required. The petition as such is allowed. May a copy of this order be served on prison authorities for compliance.’
After this hearing, I contacted Toby Cadman and Tajul Islam. Cadman stood by his comments, whilst Islam said that that he did in fact agree with at least three of the four comments made by Cadman but felt intimidated by the Tribunal. Below is an article I wrote at the time on this, but was not published:
British barrister ‘stands by’ ICT criticisms
The British barrister representing five Jamaat-e-islami leaders accused of war crimes during the 1971 war has defended the criticisms he made of the International Crimes Tribunal which on Monday the ICT chairman Justice Nizamal Huq described as inaccurate.
In an e-mail sent to New Age, Tony Cadman, one of three senior barristers from the London based chambers Nine Bedford Row who have been instructed by the political party, said that, ‘I fully stand by what I previously stated.’
He however said that since he had not been ‘present in court and [did] not hear precisely what was said by the Judges,’ he would not at this time respond in public to the Tribunal chair’s comments.
‘I fully intend to write to the Tribunal, through the Registrar, and explain my position and respond to any concerns or criticisms they have about what was set out in my statement,’ he told New Age.
On 6 May, at the end of what he said was his fifth visit to Bangladesh, Cadman issued a press release that strongly criticized the ICT and in particular the lack of rights he said was available to the detained accused.
In the five page statement, one paragraph read, 'Persons arrested on the basis of reasonable suspicion of having committed a criminal offence are also entitled, under international law, to a number of additional safeguards. For example being brought promptly before a judge, being provided with information detailing the nature of the allegations, being entitled to challenge the lawfulness of custody and independently
of this being entitled to make a reasoned bail application.’
In bold type, the statement added, ‘None of these rights have been made available.’
At the beginning of Monday’s Tribunal hearing, the Tribunal chair read out the paragraph and asked Tajul Islam, the accused’s main Bangladeshi counsel to answer questions about the accuracy of this claim.
‘Was [the accused] not brought in front of this court as early as possible after issuance of warrant?’ Islam said, ‘yes’
‘Being provided with information detailing the nature of the allegations, was he not provided with this?’ the tribunal chairman further asked. ‘Yes,’ said Islam.
‘Lastly, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application, didn’t you do it?’ Islam again responded, ‘Yes’.
The Tribunal chairman then criticized Islam for failing to inform Cadman that his views were wrong, ‘Why didn’t you do anything against this?’ he asked.
Judge AKM Zahir Ahmed added, ‘Mr Tajul, as a Bangladeshi citizen, do you think such comments from a foreigner are acceptable?’
Islam responded by saying, ‘It is his responsibility. I don't take any responsibility … I have nothing to comment on this.’
However, after the hearing, Islam told New Age that he had no option but to agree with what the Tribunal asked him. ‘I had no option to say, yes. They were leading questions.’
He told New Age that he in fact agreed with Cadman on three of the four criticims that he had made. ‘The accused have not been given copies of the allegations against them. They have only been given copies of the application filed for warrant of arrest and subsequently for interrogation,’ he said. ‘This is not the same as the copy of the allegation against them.’
In relation to being able to challenge the lawfulness of the accused’ custody, Islam said that in the defence lawyers; view ‘the law did not allow detention prior to the framing of the charges, and there had been no way of appealing the Tribunal’s decisions involving detention.’
On the issue of the bail application, he said, ‘We have made a bail application, but the order given by the Tribunal was not reasoned. The reasons that were given in our application were not reflected in the order of the Tribunal.’
He however said that Cadman was wrong to suggest that the accused were not brought promptly before the tribunal after a warrant for their arrest was issued.
Following the Tribunal’s rebuke of the British lawyer, the Tribunal passed two orders on Monday - one directing the jail authorities to provide improved transport to the accused when they travelled from jail to the Tribunal, and the other to allow Delwar Hossain Sayedee to be able to visit the Cardiac Hospital and Research Institute when necessary.
In a previous order the Tribunal had allowed them to visit Birdem heart hospital
In the five page press statement made a week ago, Cadman – who has acted as both a prosecutor and defence counsel in international war crimes tribunals – said that ‘Bangladesh has the opportunity to show the world that it is a model of the judicial process, but as it currently stands, there is a danger that this court could be seen as nothing more than a tool of political retribution.’
He says the accused men ‘are being held pending trial without fair representation … They have been interrogated under circumstances that breach the most basic fundamental rights. They have been denied access to the medical treatment requested. Unless something is done, they will be tried by a Tribunal which has powers not only to prevent them from defending themselves but also to issue the death penalty. This would be a travesty of justice.’