Tuesday, August 2, 2011

1 Aug 2011: 'Exceptional Circumstances'

A detailed note of what happened today will be posted shortly, but the orders given today raise some real concerns.

A year ago, on 2 August 2010, four Jamaat leaders - Nizami, Mujahid, Kamruzzaman and Molla were presented before the tribunal and ordered to be detained. According to the amended rules of procedures, drafted by the tribunal members themselves, this meant that the investigation should have been completed, and could only be allowed to continue if the Tribunal considered there were ‘exceptional circumstances’. It also meant that the four men, who have been detained for the last year, should be given bail, again except in ‘exceptional circumstances.’(1)

The investigation agency had however not finished its investigations into the four men and so the prosecutors had to argue for more time to allow the agency to complete them.

(The rule about needing the investigation to be completed within one year should never have been included in the rules. There is no reason why an investigation needs to be concluded after one year, and can only be allowed to continue if there are 'exceptional circumstances'. But having said that, for the sake of its credibility, having made this rule, the tribunal had to apply it, properly and judicially(2))

Did the prosecution try and argue that there were ‘exceptional circumstances’ existing which justified the tribunal giving the agency more time? No it didn't. It just pointed to the fact that the agency had a lot of work still to do – it was investigating in five districts, it had lots of materials that it needed to scrutinse (much of it laid out on the prosecutors bench) etc etc. But it did not argue specifically that there were exceptional circumstances.

Why not? Well it is likely that it realized there was nothing exceptional about these circumstances. In fact on each occasion that the prosecutors have been required in the last year to explain the progress of its investigation to the tribunal, and explain to it why more time was required for the agency to carry out its inquiries, the prosecutors have always told the tribunal that they had a lot of material that needed scrutinizing, and that they needed more time to do it. So what the prosecutors had to say today was just business as usual. Absolutely nothing exceptional!

The defence obviously realized this, and pressed home the point, in its arguments, that the tribunal,if it wanted to give more time to the investigation agency had to identify that there was exceptional circumstances. And the defence lawyer also pointed to the obvious failure by the prosecution to argue either in its written application or in its oral arguments that there was anything exceptional about the situation.

The defence argued in court that the kind of circumstances, that were required in order to meet the test of ‘exceptional circumstances’ was something like a tsunami or some other kind of natural disaster. This may well be too high a threshold, but clearly it is difficult to accept that all that the prosecution has to do to meet the test is to suggest that the investigation agency needs more time to examine its documents - particularly when it has already had one year to investigate.

If needing more time for the investigation agency to continue with its inquiries was to be a sufficient test to determine whether or not the investigation would be allowed to continue, the rules would have simply stated something to this effect: 'Investigation should be complete within one year unless further investigation was required'. But the rules don's say that.

However, the tribunal ruled that there were exceptional circumstances. How? well because the prosecution needed to scrutinize all the documents.

One can of course understand the difficulty that the tribunal found itself in. It had introduced a rule, which if properly interpreted, would result in the investigation into four of the accused bring brought to an end!

This though was not the end of the matter. There was the bail application.

Again as the rules of procedure makes clear the tribunal could only rule that the accused should remain in detention if there were ‘exceptional circumstances.’

The defence argued again that there was no such circumstances that justified the refusal of bail.

The prosecution first argued that it had in fact had no need to explain that the current situation was exceptional; it was simply sufficient, the prosecutor said, for the tribunal to gather the situation from the circumstances which were set out by the prosecution.

The prosecution however did subsequently argue that there was something that was exceptional - and this the fact that these men were closely implicated in very serious crimes.

The problem with this argument is that all the ofences over which the tribunal has jurisdiction are very serious – war crimes, genocide, crimes against humanity. Therefore there is nothing exceptional in the offences, for which the accused are being investigated, to justify refusal for bail. Moreover, this had been one of the arguments used by the prosecution to justify why the men had to be detained over the last year – so again there was nothing new about this.

The tribunal, though refused them bail. And what were these exceptional circumstances? The tribunal did not employ the point used by the prosecution. Instead it argued the exceptional reasons for refusing bail were the same as the ones that it had said existed for allowing the investigation to continue – that is to say, there were a large number of documents and materials that need to be scrutinized.

How can a person be refused bail for the same reason that the tribunal has used to allow an investigation to continue? These are two entirely separate issues obviously requiring different kinds of arguments.

Yet, with the accused having been detained for one year, the tribunal thought that simply on the basis that the investigation agency has a lot of material to scrutinse, it should refuse bail. This though is not a legitimate criteria to justify refusing bail in either Bangladesh law or indeed international law. And of course, in order for the tribunal to lawfully refuse bail at this point, it had to find an exceptional reason.

One has to remember that the Tribunal has past ‘form’ in failing to give ordinary meanings to words.

In earlier hearings, the tribunal had to decide whether or not to allow the investigation agency to question the accused. The rules of procedure stated that in order to allow it to do so, it had to show that the interrogation was ‘indispensable’. Initially the prosecution did not even try to argue that this was the case, and simply gave an order allowing interrogation, just avoiding the requirement entirely. When the tribunal finally did realize that it had to at least mention the word ‘indispensable’, it gave no coherent reason in its orders as to why the questioning was so necessary.
(Slightly revised: 7pm Bangladesh time, 2 August 2011)

(1) Rules 9(5) states:
‘If an accused is in custody during investigation period, the investigation officer shall conclude the investigation within one year of his arrest under the Rules. In case of failure to complete the investigation as specified above, the accused may be released on bail subject to fulfillment of some conditions as imposed by Tribunal. But, in exceptional circumstances, the Tribunal by showing reasons to be recorded in writing may extend the period of investigation and also the order detaining the accused in custody for a further period of six months.
The meaning of this is pretty clear. First the investigation should be completed within one year. Secondly, if after one years it is not completed, the period of investigation can be extended in ‘exceptional circumstances’. Thirdly, if the accused person is in detention, he or she should be released on bail, again, if there are ‘exceptional circumstances’

(2) The Tribunal should, of course, never have drafted a rule which has the same criteria for determining whether an extension of an investigation should be given on the one hand, and whether detention should continue on the other. They are entirely separate issues.

The time needed to investigate ofences as complicated as war crimes, particularly when they are alleged to have taken place 40 years ago, can be long. There is no reason at all to rush an investigation into an ofence like this. So why should there a year limitation at all. It makes no sense.

And whether or not a person should be allowed on bail should be decided on entirely separate criteria.

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