1 Aug 2011: 'Exceptional Circumstances'?

Three issues were dealt with by the tribunal at this hearing. First, the submission of a progress report of the investigation into Salauddin Quader Chowdhury. Secondly, the submission of the investigation report into the cases of four Jamaat leaders – a more significant moment, as a year had now gone since the investigation had started during which they had been detained in custody, and new amended rules meant that the investigation should end unless there were ‘exceptional circumstances’. And thirdly, a bail application on behalf of these four accused, which also should, under the newly amended rules of procedure, be successful unless it was found there were ‘exceptional circumstances.’ [See end for comment on this hearing]

Progress report of Salauddin Quader Chowdhury
Salaudduin Quader Chowdhury was not present in court, and no explanation was given as to why he had not been brought to court.

A family member told me that a night before the hearing they were told unofficially that Chowdhury was going to be brought to trial, but then told in the morning that this was not going to happen. No member of the family attended the hearing as far as I could tell.

A progress report was submitted by one of the prosecutors, Zead-al-Malum, to the tribunal along with a copy to be given to the accused. The tribunal then spent some minutes reading it

The tribunal chair asked Malum whether the documents that he had with him were linked to the accused person. The prosecutor responded, ‘Yes, my lord, they are. There are reports by ABC, CBS, NBC news channels, who went to all the corners of Bangladesh starting from 2nd March, 1971. There is also testimony of 35 witnesses. There is so much material. The research team still haven’t finished going through even one DVD. There are 16 DVDs, divided into 376 segments.’

The tribunal chairman again repeated the question. Malum responded, ‘Yes, there are materials related to the accused, plus there are some which are linked to others as well. The investigation is ongoing. We also have received eight out of twelve documents from the Indian embassy which contains evidence that are linked with the accused. The investigation officer Nurul Islam is away for some time, but Shyamol Chowdhury is now conducting the investigation under the supervision of Abdul Hannan.’

The tribunal chairman said, ‘Look, you can not get away by saying that some investigation officer is absent or away.’

The prosecutor responded, ‘No, my lord, what I want to say is, even though Mr Nurul Islam is away, the investigation is going on and we will submit the formal charge after its completion. But we need some more time for that; three months will be good.’

The tribunal said that it, ‘has no problem if more time is sought …. So, you want a three-month extension?

The tribunal then passed an order.

“Seen the progress report submitted by the learned prosecutor praying for further time to complete the investigation. Perused the progress report and considered the prayer for time. The prayer is allowed for the ends of justice until 4/10/2011 for submitting the investigation report or in default to submit the progress report, to the tribunal.”

There was a short interruption, when the absence of the accused in court was noted and the prosecution had stated that the progress report and copies of order had been sent to the accused but he had refused to accept them. The order continued.

“May a copy of this progress report along with the copy of this order be send to accused Salauddin Quader Chowdhury, who is in jail custody, for his information.”

Progress report relating to Nizami, Mujahid, Kamruzzaman, Molla
At the last hearing the prosecution were directed to submit its ‘investigation report’ into the four accused – Nizami, Mujahid, Kamruzzaman, Molla - for a hearing on 1 August.

At the beginning of the hearing the prosecution handed in a progress report.

The chief prosecutor stood up and stated that today’s date was fixed for submission of investigation report. ‘The investigation is not completed, so there is a prayer for a further 90 days. Though I hope 60 days will do.’

The tribunal chairman asked, what exactly they had been doing for such a long time. ‘Do you have any papers, reports or anything?’

The prosecutor said that that all the papers had been submitted. ‘There has been no dirth in the doings of the investigation itself,’ he said

‘The investigation covers a vast area – five districts, namely Dhaka, Mymensingh, Faridpur, Pabna and Jessore. Investigation in two districts is yet to be completed. There are areas like Keraniganj in Dhaka which has not been covered. These five districts are a big area to cover my lord. ‘

The tribunal chair asked, ‘How many days would you require to press the formal charge?’ The chief prosecutor responded that he needed, ‘60 days’.

The tribunal chair asked whether this meant for submission of the formal charge or of the investigation report? ‘We are not concerned about the investigation report. That is your (prosecution) issue. We are concerned about the formal charge.’

‘90 days would be helpful to complete the whole process,’ he replied, adding that he would submit four separate charges.

The tribunal then asked, ‘It seems you have so much evidence, so many reports – why are you asking for more time?’

He responded, ‘My lord, this is a big and important case. Many people are involved in the investigation process, which has to be done thoroughly. Otherwise there will not be a strong case. We don’t want to leave anything out. Our petition also says why further time is needed. We need time because the incidents under consideration happened spanning a large area. More time is needed to complete a detailed investigation. We firmly believe that if we get a 90-days extension we can finish the whole process.’

The tribunal chairman said that believing is not enough. ‘You know that I’m from Shagorpara area where “chor” emerges in the river. But when there are no “chors” people say that there is “bisshash-chor” in the river [believe-chor, meaning there is a make believe chor in the river[, while there are not any. Anyway, so, there will be four formal charges. And you need 90 days to complete the formal charge.

Tajul Islam, representing the accused, then got up to respond. He said that this was a day for the submission of the formal charge – but they have not submitted this. Instead this is an application for more time, but there is not a single new word.

He quoted rules 9(5) and (6) of the rules of procedure which says:

“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 fulfilment 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.

After every three months of detention of the accused in custody the investigation officer through prosecutor shall submit a progress report of investigation before the Tribunal on perusal of which it may make a review of its order relating to the detention of the accused.”

He said, ‘If they can show there is any exceptional case, only then can they continue with detention.

He then went on:

In Page 9, paragraph 6 of the prosecution’s application it says, “As investigation report is at the final stage, the guilty party should be kept in custody ..."

We have to say, the word should be ‘accused’, as nothing has been proven yet. The prosecutor has also pointed out that they are going to abscond if they are released on bail. We have talked about this before. We said they are going to surrender their passport and will not travel without the tribunal’s permission. They are willing to follow any condition imposed by the tribunal. The prosecution also talked about their being a influential political figure. We also talked about this before.

They are also saying they have threatened to kill witnesses. But we want to ask when, where and whom?

We are also this sons of the soil. We also want the justice for the atrocities in 1971. But not like this.

Prosecution also said the accused have cadre gangs in their pocket, which is also not true. They are saying the accused are trying to destroy the evidence, but didn’t say where and how.

Nothing has been substantiated in their allegations. There is also no exceptional case for which they can apply for the extension of the detention of the accused persons. Has there been any earthquake or Tsunami in Bangladesh? We have been hearing the same thing for a year. They have to comply with the ICT rules.

And you [the tribunal] are saying to the prosecution every time that the progress made in the investigation is good. These “Sweet Talks” are just helping the prosecution and extend the time of detention of the accused persons ...

The tribunal quickly intervened and said, ‘You should watch your language!’

(Verbal fight breaks out between defence and prosecution lawyers)

The tribunal chairman said, ‘Any lawyer standing back there, sit down! The defence counsel said something wrong and we objected. This is our matter. Why did you start fighting back there? You all should be careful.’

Tajul Islam said,

‘My lord, I’m extremely sorry for the wording. I didn’t mean anything malicious. It was unintentional.

The prosecution’s 4,000 page report has became 400 pages – this looks like a mountain has given birth to a rat. All the time you are saying we are at the fag end of the investigation. Now they should define what fag end is.

At page 10 para 8, of the prosecution application the prosecution said ... “This is an exceptional trial,” -- without even saying what are the exceptional circumstances under which the accused persons should be kept in detention.

Yes, of course, it is an exceptional trial, because nothing like this ever happened before. This kind of trial is the first of its kind here.

But, the requirement of rule 9(5) and (6) is not fulfilled. The rules are framed by this tribunal, and as long as they are here they must be followed. So, the time-seeking prayer by the prosecution should be rejected.

The tribunal chairman them said, ‘I want to say to all of you that you all should restrain yourselves. The happenings inside the courtroom are being presented distorted outside, in the media and press.’

Tajul Islam said, ‘My lord, we requested that you record the whole proceeding of the courtroom. If every thing is recorded nothing can be distorted. That is the rule everywhere around the world. They record every single thing, every minute detail – even if someone coughs.

The tribunal said, ‘Not yet. We’ll see about that, it’s under consideration. But for god’s sake say exactly what has been said here. Don’t say something that has not been said.’

At one point when Islam switched from English to Bangla, the chief prosecutor commented that Tajul should ‘speak in Urdu’ [the language of Pakistan].

The Tribunal gave its order.

‘Today is fixed for submitting formal charge, or in default, progress report by the prosecution. Accused Ali Ahsan Md Mujahid, Md Kamaruzzaman and Abdul Kader Molla are present in the tribunal. They have been produced by the prison authority. Regarding accused Motiur Rahman Nizami a note has come from Senior Jail Super, Central Jail Dhaka, informing this tribunal, that he has been in Chittagong in connection with special tribunal case no. 150 of 2004 and as such he can’t be produced before the tribunal today. On perusal of this note we accept the absence of Mr Motiur Rahman Nizami in this tribunal. He authorised Mr Tajul Islam, learned counsel, to represent him in this tribunal in this hearing today.

Mr Golam Arif Tipu, learned chief prosecutor appearing for the prosecution has filed a progress report and submits that some more time is required to complete the investigation. He submits further that the investigation is at the fag end stage and pressed before us some volumes of documents, and offered them to us as materials in connection with this case. He submits that in preparing the investigation report and the formal charge those papers are to be perused and scrutinised, and after that only the formal charge can be prepared and submitted in this tribunal.

Further submitted that today the detention of the accused persons is completing one year, and he prayed for extension of the time of investigation and also detention of the accused persons. Lastly he submitted that for ends of justice this tribunal may allow the prosecution some more time to complete the investigation, prepare the investigation report and then the prosecution will submit it before the tribunal. He submits that the documents of this case so voluminous that it may be considered as exceptional circumstances to this case.

Mr Tajul Islam, learned counsel, appearing for the accused persons, submits that from the beginning of the investigation the prosecution is submitting that the investigation is at the fag end stage and soon the formal charge will be submitted. But the formal charge was not submitted. Today one year detention of the accused persons will be completed and the rules show that this must be completed within one year. But the investigation has not been completed and the prosecution are praying for more time. Mr Tajul Islam further submits that no materials have been presented before the tribunal to consider that exceptional circumstance arises for extension of time of the investigation, and as such he prayed for appropriate order in this regard.

We heard learned chief prosecutor and the learned counsel for the accused persons, perused the progress report and also saw the voluminous documents and perused one of the documents. From perusing those things, we are of the view that these documents are scrutinised for submitting the formal charges to the tribunal and for that reason the time of investigation should be extended as prayed for by the prosecution.

On perusal and on consideration of all these facts and consideration of the fact that today one year has passed of the detention of the accused persons, we will allow some time for the investigation agency to complete investigation and prepare investigation report and some more time for preparing the formal charge for submission in this tribunal. However, the investigation report and formal charge being the internal affairs of the prosecution side, we are of the view that three months time will be enough for them to complete all these things and submit the formal charge. We direct the prosecution to submit the formal charge within 1/11/2011, if any.

Bail application
Tajul Islam, who in this application represented Kamarazuman and Nizami, began to argue in favour of bail. He argued that the same arguments employed in relation to the application of rule 9(5) also applied here.

He said that the first submission was regarding this rule. ‘What are the exceptional circumstances that make detention necessary.’ He said that there is nothing in the prosecution application saying what is ‘exceptional’.

The tribunal chairman intervened and said that the tribunal will consider what is exceptional circumstances.

The lawyer however argued that the burden is on the prosecution to put forward what are the exceptional circumstances.

‘Exceptional circumstances are things like a Tsunami. The prosecution should say something about what are the exceptional circumstances and the tribunal will then decide whether there exists exceptional circumstances.’

‘So, my lord can consider the bail option if nothing exceptional happens. The prosecution has not completed the investigation within one year, and there is no exceptional case. So the accused may be released on bail.’

‘The prosecution has been saying the same things again and again about the accused absconding and their influence. We have rebutted all these before. We said that the accused persons will not abscond, they will surrender their passport, they will not apply for travel documents without the tribunal’s prior permission and they are ready to be under monitoring. We have said everything. We have offered everything in front of the tribunal. So we will request the tribunal to grant them bail.

Time and time again, it has been said that they were involved in crimes against humanity, and they were leading mass killing. But at that time one of them was 17 and not a head or commander of any organisation, such as other war criminals like Slobodan Milošević, Ratko Mladić and Radovan Karadžić.

We also have reason to think that there is a political motive behind this trial. If the accused persons were not politicians or MPs, I think no one would have tried to harass them. There is a rift between the party they belong to and the ruling one. So the ruling party is trying to smother them. They are now detained for a year. So, for the sake of justice we are praying for bail for the accused persons.

We also want to ensure fair trial. We will provide any kind of assistance from our side. We also guarantee to abide by any conditions imposed by the tribunal.

The tribunal chairman asked whether Motiur Rahman Nizami and Md Kamaruzzaman were involved in other cases other than this one, and was told that they were.

Next, Munshi Ahsanul Kabir sought bail for Ali Ahsan Muhammad Mujahid. He adopted the arguments made by Tajul Islam, and said Ramadan is on going and for the past 30 years my client has been performing “Itikāf” [an Islamic practice consisting of a period of retreat in a mosque, for a certain number of days in accordance with the believer's own wish. It is most common during the month of Ramadan, especially the last ten days.] He said that his client would not be able to perform this while in detention or in a jail. There’s no mosque inside the jail, he said.

‘The other points that I want to present has been said by Mr Tajul Islam, so I’m not repeating them. But at least on religious grounds, to allow them to perform their prayers and Itikāf the accused persons may be granted bail,’ he said

Another lawyer got up and argued for bail on behalf of Abdul Kader Molla. ‘Abdul Kader Molla was shown arrest on 30/12/2010, and one year of the investigation has passed. Now my client has the right to obtain a bail,’ he said. The tribunal chairman corrected him and said, ‘Not right, they “may” obtain bail.’

The lawyer said that the prosecution did not give any reasons why after one year has passed, what are the circumstances that justify not giving bail. They did not set out what were the special circumstances,’ he said.

He then referred to his bail application and said that his application was 64 years, he was old and sick, with ailments from various diseases. He also said that he was dependent on insulin and the sugar level is very high. The jail authority doesn’t have any facilities to store insulin and there is also no option of checking sugar levels. So, the sugar level is out of control now, which is putting my client’s life into jeopardy.

He said that he also has eye and prostrate gland problems. He want onto argue that he was transferred to Kashimpur jail from Dhaka central jail on 4/6/11, but that it was quite impossible to receive proper treatment facilities there and there is a history of mal-treatment by the jail authority.

He also said that his client had a heart condition and Kashimpur jail has no facilities regarding that. It is almost like throwing my client into the jaws of death.

Finally, he said there were no special circumstances for which they should be kept in detention. ‘Considering his serious ailment I pray for bail for my client Abdul Kader Molla,’ he ended.

Prosecution response: Ali Haider then got up and spoke for the prosecution.

‘At first I want to say that today’s courtroom incident was absolutely unwanted and uncalled for. We should all try to avoid that and we should be careful so that it never happens again. I’m asking for everyone’s cooperation.

I have some new things to say.

Firstly, the investigation is going on and order has been passed to continue further investigation. There is no law inside and outside Bangladesh that we have to substantiate anything we found in the investigation. We have submitted the progress report for your lordship’s consumption and we don’t have to substantiate anything to anyone other that the Tribunal. There is nothing regarding that in international law or domestic law.

They are saying we have to substantiate what we found, but we don’t have to.

Secondly, they are saying 4,000 pages turned into 400 pages. The defence counsel knows very well, what we have to submit and when. We submitted things that are necessary.

About the absconding, I’ll say there was a section who fled the country after the victory on 16th December, 1971. In the investigation report the investigation agency found out that the accused persons fled the country.

About the exceptional circumstances they cited from rule 9 (5). The rule was not in the original rules of procedure. The rules of procedure was amended by the Tribunal. We can say about this amendment, and the creation of the provision of releasing them on bail after 1 year, was an “accused-friendly” amendment. We (prosecution) were affected by the amendment. But, we don’t want to say this. The tribunal did what they thought was necessary.

The onus is not on us to show exceptional circumstances. On perusing the progress report if the Tribunal thinks that there is an exceptional circumstance, if they see there is something exceptional, they are going to take their decision based on it.

My last submission is that the case itself is not a case of single murder or anything. It is a case where lots of civilians were killed. The mass killing was a planned one. This is itself an exceptional circumstance. In this situation there is no question of not saying that there is nothing exceptional.

About the bail prayer, we would like to say that bail does not need any act or any law. We know, the defence knows, that bail may be granted depending on the nature of crime.

But the investigation report shows that the crime that was committed was not a bail-able offence.

There has been detailed talk about the health condition of the accused persons. We are saying again that we will do our best to assist in receiving the best treatment for them. We will also look into the problems regarding insulin and other treatments.

About Ramadan, we will observe if there is any problem regarding saying prayers and performing Itikāf. And, I think there is a provision of performing Itikāf inside the prison.

There is a difference between a religious leader and a political leader. Religion is a personal issue. So many Pir, Aulia and Dervish came to our country and some of us also got converted into Muslims. So many of us were not even Muslims. But in case of religion we are ready to support as far as possible.

Other grounds against the bail were presented earlier to the tribunal, so I won’t respond to them. On the basis of all the above the accused petitioners should not be granted bail.

Tajul Islam then got up to respond to these arguments.

The prosecution has raised a ‘billion dollar question, he said. ‘As per the rules there is a requirement that need to substantiate that there are exceptional circumstances. Now he is saying that not need to substantiate the allegations at all.

What is their intention behind this? What do they actually want? What do they mean by we don’t have to substantiate? So you can keep punishing the accusing persons keeping them detained. So, why is the trial necessary? They can be punished straight away.

This is a country of common law or adversarial system, not a country of inquisition system like France. Court will listen to both sides and scrutinise and pass their orders.

Investigation agency performs the investigation and prosecution provides it to the tribunal. But, tribunal can’t perform any inquisition here.

The tribunal interrupted the defence lawyers and said, ‘what you are saying is at the trial stage, not the investigation stage. At the investigation stage the prosecution is not obligated to present the findings to anyone except the tribunal.’

Islam responded by saying, ‘But my lord, no exceptional circumstances could be presented by the prosecution.’

The tribunal responded, ‘Would you please stick to the point of bail petition? Our order considered something as exceptional and that is enough.’

Islam again said, ‘But, why is the prosecution not substantiating anything?’

The Tribunal chairmn said, ‘Please stick to the point. You are quite a senior lawyer. Don’t you understand are the court norms. Stick to the prayer of bail, you are in reply. You prayed for bail. They opposed it. And you should give your reply.

Islam then referred to the prosecution argument that the accused persons will abscond.

‘None of my clients fled the country during that time [after 16th December, 1971.] There is no question of absconding this time now,’ He said

He finished by saying, ‘Considering the long one year detention, their health condition and the political harassment the accused petitioners should be granted bail.’

The tribunal then passed its order:

"Four applications of bail were filed by the accused Motiur Rahman Nizami, Ali Ahsan Muhammad Mujahid, Md Kamaruzzaman and Abdul Kader Molla are taken up for hearing. Mr Tajul Islam, the learned counsel, appearing for accused Motiur Rahman Nizami and Md Kamaruzzaman submitted that this is a case where one year has elapsed regarding the detention of the accused persons in custody and the prosecution couldn’t submit formal charge as yet. By referring to rule 9(5) of the rules of procedure Mr Tajul Islam submitted that when the investigation agency couldn’t submit formal charge within this period of one year the rule says the accused may be released on bail subject to fulfilment of some conditions imposed by the tribunal, and pressed for bail on this point.

He further submitted although the rules allow the tribunal to extend the period of detention for further six months, reasons of ‘exceptional circumstances could not be pressed before the tribunal by the prosecution and there has been nothing on record to substantiate ‘exceptional circumstances’ and that the accused persons are entitled to be given they do not find any exceptional circumstances, and the tribunal is required to enlarge them on bail.

Tribunal chairman paused and asked the accused lawyer whether this was right. ‘Mr Tajul Islam? I have to be very careful and put down every point because I don’t want to put anything that has not been said (allegedly)!’ [This appears to be a reference to the previous order where the tribunal chairman added into an order an argument that he said was made by the prosecution that was not actually made.]

Mr Tajul Islam then submitted that the accused persons are in custody and they are respected persons of the society. One of the petitioners, Mr Motiur Rahman Nizami, was a minister in the past government. He further submits that the prosecution may continue with the investigation but for ends of justice the accused persons may be granted bail. He also submitted that these petitioners are sick and has been in custody for long time, and Ramadan is coming soon and they want to perform Itikāf, saying that they are all religious-minded people.

Munshi Ahsanul Kabir, learned counsel, appearing for the accused Ali Ahsan Mohammad Mujahid, submitted the same points as have been submitted by Mr Tajul Islam. He further submitted that the accused person is sick and he requires medical treatment regularly but in jail custody he is not getting proper treatment. He further submitted that the accused person wants to perform Itikāf and asks that the tribunal consider this aspect. He was also a minister in the last government.

Mr Moinuddin Khan, learned counsel, appearing for the accused Abdul Kader Molla, has also submitted the points submitted by Mr Tajul Islam and Munshi Ahsanul Kabir. He also submitted that Mr Abdul Kader Molla is old and sick and need insulin regularly, but in Kashimpur jail this is not available so there is a problem in his treatment. He further submitted that the investigators of the accused person can not bring a case of this nature against him and so also prayed for bail for the accused person.

On the other hand, Mr Syed Haider Ali, learned prosecutor, opposing the prayer for bail submits that the bail prayer of these accused persons has been rejected by this tribunal three times each. He further submitted that this is a case where the involvement of the accused person so clear, proved by materials collected by the Investigation Agency, that these people can’t be released on bail at this time when investigation is at the fag-end stage.

He future submitted that rule 9(5) allows to consider the prayer for bail of the accused persons but facts and if the tribunal is satisfied can enlarge them on bail but that facts and circumstances of this case where the time for investigation has been extended by three months today, the accused persons may not be granted bail.

He further submitted that all accused are influential persons of the society and political leaders, two of them were MPs of last government and as such they have got ample influence over society, to influence the investigation and even to go into hiding.

Lastly he submitted that after liberation of Bangladesh, the investigation agency found that, these people went into hiding and as such if entered on bail they can go into hiding considering these aspects he submitted that the accused petitioners may not be granted bail.

On the ground of health he submits that this tribunal has passed orders regarding treatment of the accused persons and there have been no allegations that those orders have not been complied with. So bail prayer on medical ground can not be accepted. Although he submitted that if any problem is faced by the accused persons in getting proper treatment, the prosecution will get involved and they will take proper steps to ensure treatment of the accused.

Regarding Ramadan and Itikāf, he submitted that keeping fast, the scope is available to the accused persons if they are in custody and if they want to perform Itikāf.

We heard the learned counsel and learned prosecutor and given our anxious thoughts in the matter. There are two new points asked by the accused persons today. First point is one year of detention has elapsed and under rule 9(5) they are allowed to get bail and the second point is Ramadan and Itikāf. Regarding first point just today we have extended the investigation for further three months. The accused persons are in custody for one year and the rules provide that they can be allowed bail if the court not substantiate thate there are exceptional circumstances. We have considered exceptional circumstances in the order today earlier, and we are of the view that severe exceptional circumstances appear while considering bail for the accused persons.

Regarding the Ramadan and Itikāf we are just informed that by the counsel that there is no provision to perform Itikāf in jail custody.

We have considered there is no bar to continue fast in the jail custody. Regarding Itikāf we are of the view that if it is possible the Jail Authority may allow them to perform Itikāf inside the jail.

Regarding the health condition of the accused persons we again direct the jail authority to arrange proper treatment of them inside jail and taken to hospital, and we direct the learned counsel to take help of the prosecution for the treatment of the accused persons including from the chief prosecutor and take help of them.

With all these observations the prayers of bail of the accused petitioners are therefore rejected. Let a copy of this order be sent to the prison authority.

The accused lawyer asked for a copy of this order and the tribunal chairman asked that they should apply for it stating the purpose and apply for an authenticated copy. ‘We’ll see,’ he said

Comment
1. It is notable that Salauddin Quader Chowdhury was not present at the tribunal. No explanation was given as to why not. It is also notable that the tribunal was willing to give copies of the investigation progress reports to Chowdhury – when they have not been willing to do so for the Jamaat defendents. It is unclear what is the reason for this difference in tribunal conduct. The Jamaat accused could well ask why Chowdhury is being given copies of the investigation report, when their lawyers are not.
2. On the issue of ‘exceptional’ circumstances relevant to both the issue of the extension of the time of investigation and for bail, this has been discussed in an earlier blog written immediately after the hearing. One additional issue should be raised. It is pretty remarkable that the prosecution, in its written or oral application, did not engage with why the circumstances were ‘exceptional’. In court, the prosecution said that it felt that it did not need to as it was for the tribunal to make its own decision, and it could do so without the prosecution decisions. However, any competent lawyer would know that if there was a requirement in the law that something be ‘exceptional’ in order for a particular result that you are seeking takes place, as a lawyer you obviously set out the arguments why this is indeed the case. The failure of the prosecution make those arguments is really very remarkable.

There appear to only be two explanations for this vacuum. The first is total incompetence on the part of the prosecution. Whilst, the competence of the prosecution team is certainly an issue, it is difficult to imagine that it can be quite so incompetent not to recognise that it should make arguments that would allow the tribunal to rule in its favour. The second possible explanation – and the one that, I would argue, seems to be more likely to be closer to the truth - is that the prosecution was simply entirely confident that the court would support its position, and felt it did not need to argue why the situation was ‘exceptional’. Perhaps a bigger question is why the prosecution could feel so confident?
3. On the general issue of the tribunal failing to provide reasons for its decisions - an issue generally well rehearsed in this blog - see this article, I published in New Age newspaper 'The Age of Reasons'

Govt bans entry of British defence lawyer

What could be behind the government's thinking to ban a British barrister, instructed to represent all five of the Jamaat-e-Islami leaders accused of war crimes? (see: ICT accused UK lawyer ‘banned’ from entering Bangladesh), and confirmation that it was the Home Ministry that was behind it)

If the government wanted to increase people's suspicion about the government's intentions and motives concerning whether it was willing to allow a fair trial of those accused of war crimes during the 1971 war of independent, to take place, well banning the defence lawyer from coming to Bangladesh is certainly a successful way of doing that.

This will now be used, perfectly legitimately one has to say, to argue that the right set out in the International Crimes Tribunal's rules of procedure for the accused to choose their own lawyers is rather void of meaning.

And it just looks so bad! When the government is being criticised right now by most (all?) independent observers of this tribunal for failing to live up to the standards the government originally promised, banning a defence lawyer to come into the country does not look good.

These days, on many issues when the government is given a gun, it will just shoot itself in the foot!

No doubt the government find's Toby Cadman involvement in the trials annoying. He, along with the two other British lawyers, are helping the Jamaat raise concerns concerning both the law under which the tribunal is operating as well as the legality of many of the tribunal's actions. That is of course his job.

But these criticisms would have no resonance if there was no substance to them. Unfortunately there is, and almost all his concerns are echoed by independent international human rights organisations and international lawyers.

Rather than banning lawyers, the government should take steps - by making changes in the law and to the ICT's procedure and operation - so that these criticisms have no traction.

It has had two years to do this, of course, and has in that time made only minimal changes. (see: New Age article, Convicting the Guilty or Fair trial for the accused?)

Lets hope that the government has a change in mind.

First, however, if the Bangladesh government is listening, do let Toby Cadman in!

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)

-------------
Footnotes
(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.