Sunday, September 25, 2011

10 Aug 2011: Sayedee charging adjournment

On 14 July 2001, when the tribunal decided that there was prima facie case against the accused, today was set as the date to hear the application for ‘charge framing’ in relation to Delwar Hossain Sayedee. (Nick Kourmjian, an international lawyer sent to Bangladesh on behalf of Stephen Rapp, US War Crimes Ambassador at large was present at the hearing, sitting next to the prosecutors.) See comments at the end.

Application by defence for adjournment, documents and access to client
Just as the chief prosecutor was about to argue why the tribunal should frame charges, the chairman of the tribunal informed the chief prosecutor that he would first like to hear the application of defense counsel. He said that apart from the application for adjournment of charge hearing, there were two other directions being sought.

Mr. Tanvir Ahmed Al-Amin stood up to argue on behalf of Sayedee.

He first, said that according to the order of the tribunal, the prosecution was supposed to serve documents by 19 July. On the 14 July, todays date was given considering 21 days passing. He said that the defence lawyers had gone to the register on the 19th but were told that the prosecution had not filed them. . In fact the documents were only filed on the 27 July. He said that if teh charge hearing goes on the defence would be prejudiced as they have not had enough time to prepare themselves. The tribunal chairman then said, 'next point'. Al-Amin continued by saying that, having looked at the formal charge documents, the defence lawyers found that out of 400 pages, 97 were illegible. "we tried hard to read them, but we couldn't' he said. 'We want you to direct the prosecution to reytpe the inelligible documents' He said that although he had himself read the legible documents, he had not been able to take them to the accused petitioner. ‘He needs to know what are the allegations against him so that he can advise whether or not to plead guilty,’ he said.

Al-Amin said that he had asked the jail authorities to have privileged communication with Sayedee but that permission had not been given. He said that in the application they had cited the relevant provisions of the jail code which refer to privileged communication.

He also said that Sayedee had ‘asked him to review the cognisance order, and that charge framing cannot take place before the hearing of the review order framing. ‘Since there is a process of review, we would like to review,’ he said.

The chairman asked the lawyer, whether or not he would be prejudiced if the “charge frame application” was heard today and the lawyer replied that this would definitely be the case.

There was then an argument between the lawyer and the tribunal chairman. The lawyer wanted to make longer submissions, but the chairman said that this was unnecessary.

Zead-Al-Malum, a prosecutor, then stood up. He was asked by the tribunal chairman about his view on the adjournment, and in relation to the request for other directions. Malum said that it was upto the tribunal whether to adjourn.

In relation to the illegible documents, Malum said that he would try to provide them. The tribunal chairman said that he understood that these are old press cuttings but if the documents are illegible he said that they would not be taken into account by this tribunal. You may try to submit them but there is a very low chance of succeeding.

The prosecution should keep in mind that they ‘cannot take any benefit from any illegible documents.’ About the privileged communication, Malum said that the process should follow what is in the jail code which allows the defence counsel to have meeting with the accused inside jail.

One of the tribunal members then said that according to section 9(5) of the 1973 Act, the defence should be providing a list of witnesses that it was going to rely on to the prosecution. (section 9(5) states: A list of witnesses for the defence, along with the documents or copies thereof, which the defence intends to rely on, shall be furnished to the tribunal and the prosecution at the time of the commencement of the trial.' This resulted in a discussion about when was the 'commencment of the trial' with the defence arguing that they needed adquate time to prepare themselves. This issue was not resolved, and the tribunal passed its order:

‘Application filed for order issuing directions taken up for hearing. Mr. Tanvir Ahmed Al Amin the learned counsel appearing for the accused petitioner submits that they have received documents submitted by the prosecution on 27.07.2011 and they are required to prepare themselves. Further submitted that 21 days may be given for preparation and that 21 days not given so pray for adjournment. In this respect, Mr. Ziad-Al-Malum the learned prosecutor submitted that it is upon the tribunal to allow the adjournment or not. Considering the submissions by both sides, we are inclined to adjourn the hearing for framing charges today. Let 18.08.2011 be fixed for hearing of framing charge.

The learned counsel appearing for the accused petitioner made a second prayer and said that the documents served upon them contained in total 97 pages of illegible documents. This tribunal also while perusing those documents finds that some documents are illegible. The learned prosecutor appearing for the prosecution submits that they will try to submit the proper readable pages, if they are given some time. Considering the submissions of both sides we are inclined to allow some times to the prosecution for submitting the readable documents for the defense and the tribunal, and they are to submit the documents within 14.08.2011. The learned counsel appearing for the accused petitioner will also receive those document on 14.08.2011 from the office of the register.

Regarding 3rd prayer for allowing the counsel to meet the accused petitioner in jail custody for consultation is taken up for hearing. This prayer is also not seriously opposed by the prosecutor. The jail authority where the accused Delwar Hossain Sayedee is now in custody is directed to allow Mr. M Tajul Islam and Mr. Tanbir Ahmed Al Amin, the two counsels, to meet and consult with Delwar hossain sayedee, the accused in this case on 16.08.2011 for two hours.
The defence lawyer Al-Amin then rose and said that ‘two hours is not enough. This person must know what the allegations are against him.’ The lawyer was told to sit down, but he then said, ‘We need to read through the whole charge. One day is not at all sufficient.’ He said that in their application they had sought two weeks adjournment. The tribunal chair said, ‘Whatever you have got just read that. Read whatever is available and legible.’ The lawyer also said that they should put into the order the need for ‘privileged communication’ The tribunal chairman then corrected the order and said that meeting could take place throughout the day and that the communication must be privileged. The chairman then proceeded with the order:
This communication between the learned counsel and accused will be a privileged communication which means that no person will be present for this communication inside jail. The bail petition will be taken up on date of framing of hearing.
Al-Amin then got up and said, ‘In case of framing of charges, this is a very serious matter. We have not been given an opportunity to consult with our client. Now you are only giving us two days between the consultation and the hearing. One week from now is not enough’ he said.

The tribunal chairman told the lawyers they had been given 21 days.

Al-Amin also argued that the application for review of the cognizance order can only be filed on receiving a copy of the order. The chairman said that the lawyers could get copies of the cognizance order that day.

Tajul Islam, another defence prosecutor, also told the Tribunal that he doubted that the allowed time for consultation would be enough.

The tribunal chairman said that they would give another adjournment if necessary.

Defence Press briefing to Bangladeshi media given by Tajul Islam
"You know that today was fixed for Maulana Delwar Hossain Sayedee’s charge hearing. We submitted two applications from defence. One was application for adjournment, we prayed for eight weeks time, because you know we were supposed to be provided the documents by 19th July. They gave the documents to us on 27th July. And 97 pages among the 400 pages documents (out of the original 4,000) that they gave us are unreadable. Then we said we have let our client Maulana Sayedee know about the charges in the documents if we want to defend him. We applied to the Jail Authority for privileged communication, and there is law requiring privileged communication. The Jail Authority has not yet allowed us that. So we could not speak to him. Moreover, we said, we will file a review against the cognisance order, as there is provision for that. But for the review you need certified copies of the order. We have not yet received that. So we told the tribunal if there is a review of the cognizance order there is no question to carry on with charge framing, and the process should be stopped at least until it finishes. We have not yet received all the documents. So, without scrutinising these documents we can not take part in the charge hearing. After hearing our petition, the tribunal only allowed one week for us. But we want to say, you know, during the last one year, prosecution for the sake of scrutinising different type of documents, sought time, and they took one year. And sometimes they could not even finish scrutinising the documents within the timeframe.

Today, when we are at the almost-final stage of charge framing, we sought eight weeks. Our grounds were specific. But the tribunal only gave us one week. They permitted us to go to the Jail on the 16th of August to talk to Maulana Sayedee. So, we are getting only one day (the 17th), and on the 18th we have to come and place our arguments for the case, which is, so to speak, unrealistic and very hard.

You know, charge hearing is a complex hearing where intense preparation is needed for law and facts. Without this sort of preparation, to defend the accused in a case like war crimes is absolutely impossible. That’s why we prayed for sufficient time to the tribunal. The tribunal gave us one week and said they will give us more time if needed. But we believe, the time we got, is not sufficient and it is impossible to defend our client with proper legal arguments.

Q: Is there any limitations regarding the timeframe? Isn’t it three weeks?

A – No, there is no limitation of the timeframe in the act. The three weeks that you are talking about is not applicable in this case. It is applicable after framing the charges, and that is also stated as “at least”, and that can go up to six months or one year, there is no obstacle for that.

But before framing of charge there is no time limitation. And in international tribunals they are allowed years after years in this sort of cases.
Press interview by AFP, BBC and myself with Tanvir Al Amin
AFP: Are you happy with the few hours allows to contact your client

Lawyer – Certainly not. But later on the tribunal said we can use the whole day. It needs a series of meeting. More importantly, after 16 August, we are getting only one day time. On 16th, whole day we will have to discuss the matter with the accused petitioner and then we will have only one day, i.e. the 17th for preparation. It is not at all practical. We have submitted that to the honourable tribunal to extend that. This time is not at all sufficient. Prosecution had months for their preparation, for scrutinising papers and documents, months and months, almost a year.

We get the document, and we get to consult with the accused on the 16th and we have only one day time, the 17th, and on the 18th we’ll have to submit for charge hearing. We said that is not sufficient and we prayed for eight weeks time. Our client/ the accused also instructed us to seek review of the cognizance order which was passed on the 14th July. We have applied for certified copy of the order. The tribunal told us today that the certified copy is ready and we can get the copy. So today we will get the copy about the cognizance order which was passed on 14th July. Then we will have to do review petition of the cognizance order and after that we need at least three weeks time for preparation of all these things. The accused petitioner must get sufficient time to prepare for the formal charging.

BBC: How often did you get the chance to meet your client in the past year?

Lawyer – For the last one year I could only meet him two times and that was not even privileged communication. We were surrounded by security personnel. That’s why on 4th August we made an application to the jail authority, according to rules of Bengal Jail Court (section 683 and 687), which provides that a counsel should get privileged communication to the accused petitioner. So, we applied to the jail authority that we should get according to that provision we are entitled to get privileged communication. But we haven’t heard back from the jail authority. In the earlier petition they denied our verbal request for privileged communication. And today the honourable tribunal has directed the jail authority to give us privileged communication allowing us to meet the accused on the 16th August.

DB: You said you only got two visits with your client in the previous year, how many times did you apply?

Lawyer – We have applied several times and in most occasions they were not even ready to receive the application. They said, “Sorry, we can not take this type of petition.” We used to provide specific law/sections in those applications.

DB: You said you need eight weeks to prepare for the formal charge hearing. Tell me why you need eight weeks?

Laywer – I said at least eight weeks. Because charge framing and hearing takes complex legal arguments that are made based upon facts and law. So the documents they submitted, we have to go through in full detail of those documents, and find out which are relevant for us and which are not for our case. So this requires time. 500 pages set is not a small document. We will need series of communication with the accused petitioner before that. The accused petitioner must know what the allegations are. And we can only act upon his instruction.

DB: Is it normal before charge framing for the accused’ lawyer to put his arguments?

Lawyer - It is, it is normal. The petitioner may put complex legal argument why the charge should not be framed.
1. There appears to be a reluctance on the part of the tribunal to give the defence a proper period of time to prepare themselves for the key hearing of the 'framing of the charges' The prosecution were supposed to serve copies of the charge application and supporting the defence on 17 July. In fact they only did so on 27 July. Amongst the documents there were a number of illegible documents, and legible copies of these documents will now only be given on the 14 August, and then a meeting with the client on 16 August, with a hearing on the 18th. That seems extremely rushed, to put it mildly, considering there are over 400 pages of documents altogether!

From the point of view of an observer it really does look like the tribunal is trying to rush the defence and not giving them proper opportunity to prepare themselves. It really does not look good.

2. The hearing highlights the limited access the defence lawyers have to Sayedeein jail. It needs to be understood that this is to some extent a reflection on the way in which criminal justice generally operates in Bangladesh, rather than something specific to this tribunal: it is not that common for criminal defence lawyers in Bangladesh to seek access to their clients at all in jail, and it is likely that the tribunal judges are simply responding to their lack of appreciation that good defence lawyering requires proper communication with their client - that it should be a right rather than a privilege, which seems to be the way the tribunal is dealing with the issue.

3. The comment at the end of the hearing by Justice ATM Fazle Kabir concerning the application of section 9(5). Is the tribunal going to argue that the trial has 'commenced' and that at this early stage, before the defence will have been able to have undertaken any proper defence investigation etc, they will have to give the defence a copy of their witnesses. If so, this will be a real travesty! It will be interesting to see how this plays itself out.

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