Tuesday, September 27, 2011

18 Aug 2011: Sayedee cognisance review

The hearing was supposed to deal with the charge framing application made by the prosecution which had been adjourned from 10 August. However it started with the tribunal chair saying that he would first deal with the application made by the defence to review the order of 14 July where the tribunal ruled that it had taken ‘cognisance’ of the case against Delwar Hossain Sayedee. (Nicholas Kournijan, an international lawyer sent by Stephen Rapp, US ambassador for War Crimes, was present at the tribunal, sitting alongside the prosecution team.) See comments at end.

Cognisance review hearing
Mr. Tanvir Ahmed Al-Amin, Sayedee’s lawyer started by saying that on 14 July the Tribunal ruled that having perused the material submitted by the prosecution in support of its case against the accused, it was of the view that a prima facie case had been established. The material considered by the tribunal, he said, ‘included the petition for formal charge along with 3 CD’s containing investigation reports, papers and documents. No hard copies of the documents were submitted by the Prosecution to the Hon’ble Tribunal.’ He said that subsequently the tribunal refused bail to Sayedee.

He said that he was making an application under rule 26(3) of the ICT rules of procedure which provides that the Tribunal may review any of its orders in the interest of justice.

He first argued was that the order did not include any ‘reasoned decision’ He read out rule 29(1) of ICT rules of procedure which states that: “The Tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.’

Amin said that it was standard international practice for decisions of a tribunal to be supported by sufficient reasoning that is sufficiently and clearly set out. He said that this also applied to pre-trial decisions and pointed to a judgment to the ICC appeals chamber of Mr. Thomas Lubanga Dyilo against a pre-trial decision on 14 December 2006 which stated that “it is essential that [the reasoning] indicates with sufficient clarity the basis of the decision. Such reasoning will not necessarily require reciting each and every factor that was before the Pre-Trial Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion”.

He also pointed to the decision of the European Court of Human Rights in the case of Hadjianastassiou v. Greece where it held that courts are required to: "indicate with sufficient clarity the grounds on which they based their decision…it is this, inter alia, which makes it possible for the accused to exercise usefully the rights of appeal available to him".

He also said proper reasoning ‘had been the practice of the Yugoslavia tribunal appeals chamber which has consistently held that the right to a reasoned decision is an element of the right to a fair trial and that only on the basis of a reasoned decision will proper appellate review be possible.’

He went onto say that this Tribunal ‘took less than three days between 11 to 13 July to peruse the material which consisted of 542 pages, 97 of which were illegible, submitted by the Prosecution and concluded that a prima facie case existed against the Accused-Petitioner,’ and that it ‘failed to give any indication or reasoning as to why it was of the view that a prima facie case had been established against the Accused-Petitioner. There was no explanation as to what material the Tribunal examined and on what basis it took cognisance of offence. ‘

At one point the lawyer, when reading out the application used the words, ‘humbly submitted’ and the tribunal chairman stated, ‘Your application does not say humbly submitted, why are you saying that? If you are reading your application then read it word for word. Don’t put in anything extra. You didn’t state “humbly” in the application.’

The lawyer then moved onto the issue of ‘legal certainty’

He quoted Article 15 (1) of the International Covenant on Civil and Political Rights which states that “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”.

He said that this means ‘no crime and no punishment except in accordance with the law at the time’ both of which ‘are non-derogable rights in international law.’

He added that this section also provides ‘for the right to legal certainty whereby all crimes are to be adequately detailed in law. It prohibits the prosecution and punishment under vague laws which do not clearly proscribe the conduct for which one has been punished.

He said the only exception to these principles are Article 15 (2) of the ICCPR which states that “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.”

He said that the alleged acts are said to have occurred during the Liberation War 1971which precedes the 1973 Act. ‘For this reason as the crimes listed in section 3 (2) of the Act are of an international character, they must conform with the accepted definitions under customary international law at the time the acts were alleged to have been committed in 1971.’

He then went through all the offences over which the Tribunal has jurisdiction to argue that as defined in the Act they are ‘in breach of Article 15 ICCPR as they either do not conform with the definitions of the crimes under customary international law in 1971 as required by Article 15 (2) ICCPR or are insufficiently defined and in violation of Article 15 (1) ICCPR.’

Crimes against humanity: He said that‘Pursuant to customary international law in 1971, acts of crimes against humanity are only committed in situations of an international armed conflict. This is evident from the definition of crimes against humanity under Article 6 (c) of the Charter of the International Military Tribunal, London (known as the Nuremberg Charter) and Article 5 (c) of the Charter of the International Military Tribunal for the Far East (known as the Tokyo Charter) which is: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan”.

He went onto say that the term “in execution of or in connection with any crime within the jurisdiction of the tribunal” indicates that a nexus of an international armed conflict is required as the other two crimes within the jurisdiction of both International Military Tribunal’s were war crimes and crimes against peace, both of which were de facto linked to international armed conflicts.’

He argued that the definition of crimes against humanity under section 3(2)(a) of the 1973 Act is largely based on the definitions under Article 6(c) Nuremberg Charter and Article 5(c) of the Tokyo Charter with the exception that it excludes the words: “in execution of or in connection with any crime within the jurisdiction of the Tribunal” thus removing the required nexus of an international armed conflict.

He went onto say that the required nexus between crimes against humanity and international armed conflicts remained customary international law even up until 1993 with the creation of the International Criminal Tribunal for the former Yugoslavia.

He added that as previously held by the Tribunal, the conflict in Bangladesh in 1971 is not classified as an international armed conflict between two sovereign states. Therefore the acts alleged to have occurred in 1971 cannot be classed as crimes against humanity. To do so would amount to prosecuting an individual for an act that was not criminal according to customary international law in 1971. This would be in breach of the principle of legality under Article 15 (1) ICCPR.

Crimes against peace
: About this offence he stated that ‘under customary international law in 1971 crimes against peace could only be committed in international armed conflicts between two sovereign states. This is evident from the definition of aggression provided for in Article 1 United Nations General Assembly Resolution 3314 (XXIX) 1974 which stated: “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”.

He argued that the definition for crimes against peace under customary international law in 1971 also limited the criminal responsibility of individuals for crimes against peace to leaders and policy-makers. This is evident from the definition of crimes against peace used in both Article 6 (a) Nuremberg Charter and Article 5 (a) Tokyo Charter which states that it refers to “Namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”.

He said that section 3(2)(b) of the 1973 Act adopts the language used in Article 6(a) of the Nuremberg Charter and Article 5(a) of the Tokyo Charter with the exception that it excludes the words: “or participation in a common plan or conspiracy for the accomplishment of any foregoing…” thus extending the criminal responsibility to all individuals.

He argued that this tribunal has stated that the acts alleged to have occurred in 1971 did not occur in the context of an international armed conflict and - as a result cannot constitute crimes against peace. Further still an individual that is not a leader or policy maker cannot be prosecuted for crimes against peace. To do so would be a breach of Article 15 (1) ICCPR.

Genocide: About the offence he said that ‘the definition of genocide in customary international law in 1971 is based on the definition provided for in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide which states: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group”.

He argued that this definition continues to be customary international law as evidenced in Article 6 of the International Criminal Court which adopts the same wording as in Article 2 of the Genocide Convention.

He stated that the acts included in the above definition of genocide are part of an exhaustive list limited to targeting national, ethnical, racial or religious groups and that in contrast, section 3(2)(c) of the 1973 Act includes ‘political’ groups amongst its targetable groups. Further still, the use of the term ‘such as’ in section 3 (2) (c) IC(T)A renders the list of punishable acts as examples of a non-exhaustive list. This is not in line with the customary international law definition of genocide both in 1971 and beyond. This not only breaches the principle of non-retroactivity but it also means that acts which may be included as genocidal under section 3(2)(c) of the 1973 Act are not yet defined, both of which are in violation of Article 15 (1) ICCPR.

War crimes: In relation to war crimes, he argued, ‘That the definition of war crimes in customary international law in 1971 required a nexus between the act and an international armed conflict. This is evidenced by the fact that in 1977, the concept of war crimes was only included in Additional Protocol I which dealt with international armed conflicts and expressly excluded in Additional Protocol II which dealt with non-international armed conflicts. The Additional Protocols were adopted at the Diplomatic Conference for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts of 1974 – 1977 in which 126 states took part. The outcome of the Diplomatic Conference reflects the position of customary international law, which by definition is the general practice of States accepted as law.

This tribunal has stated that it is of the opinion that the events in Bangladesh in 1971 are not classified as an international armed conflict. For this reason acts committed in 1971 cannot be prosecuted as war crimes in line with the … principle in Article 15 (1) ICCPR.

Violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949. About these offences, he said that ‘the 1949 Geneva Conventions, with the exception of Common Article 3, only apply to international armed conflicts and thus the previous arguments are applicable.

Further still, he said, that as held by the Yuguslavia Tribunal’s Appeals Chamber in Prosecutor v. Tadic, it is “appropriate to take the expression ‘violations of the laws or customs of war’ to cover serious violations of international humanitarian law”. The current definition of this offence under section 3(2) of the 1973 Act is currently too broad in scope and vague in definition, thus falling foul of Article 15 (1) ICCPR. Further more, to prosecute ‘any violation’ of the Geneva Conventions may additionally breach the principle of legality if the violation in question does not pass the ‘seriousness’ threshold.

Any other crimes under international law: In relation to these offences, he said that the offence is vague in definition and conduct.

He said, ‘That as signatory state to the ICCPR, Bangladesh has an obligation to uphold the non-derogable right under Article 15 (1) ICCPR. For this reason, it is submitted that jurisdiction cannot be taken over the offences as currently defined under section 3 (2) IC(T)A which either do not conform with the definitions of the crimes under customary international law in 1971 or are currently vague in definition.

He argued that in order to raise a defence, and in accordance with the principle of certainty under Article 15 (1) ICCPR, the elements of each crime under section 3 (2) IC(T)A are required.

On that point, the lawyer ended his submission. The Tribunal chaiman said, ‘I have only one question. Have you ever taken part in cognizance hearing in any type of court before?’

The lawyer said that he had not. He was then asked by the chairman, what was cognisance.

The lawyer responded by saying, ‘It is taking judicial notice by a court of law on a matter presented before so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially, and there has to be prima facie evidence. But the offences are not defined in the act my lord. If the offences are not clear on what offences your lordship is going to take cognizance? My submission is that none of the crimes are defined well under section 3(2) in the ICT act.'

The chairman said, ‘So you are saying the offences are not defined …’. The lawyer replied, that ‘And also the crimes happened in 1971 and the act was enacted in 1973.’

The chairman said, ‘We know that we can not impose heavier penalties than the one that was applicable at the time when the criminal offence was committed in 1971. We can not give heavier punishment than what was stated according to 1971’s law.’

The lawyer responded, ‘The ICT act is almost the same as international laws but with slight deviations that makes it vague. Your lordship has to be satisfied that the documents provided by the prosecution establish a prima facie case. But if the offences are not defined that becomes impossible. And my humble submission is that the tribunal must follow the international rules.'

The chairman then said, ‘The ICT act states crimes against humanity are murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated. Do you want to submit that this is vague? What we have to look for to take cognizance is that if there was murder committed against civilians. We found it.

Mr. Al-Amin replied that these are all offences under our penal code but some more elements will be required for offences under section 3(2) of 1973 Act.

The tribunal said, 'In the submission you cited international law cases. Were they concerned with cognizance, charge hearing or judgement?

The lawyer responded, ‘These re general principles, which apply for any stage.’

The Tribunal said that the issues of definition of the offences is not for consideration at the time of taking cognizance of offence, rather these arguments may be relevant at the time of charge hearing.

The tribunal chairman then asked the lawyer to read the paragraph which read, ‘That this Hon’ble Tribunal took less than three days to peruse the material which consisted of 542 pages submitted by the Prosecution and conclude that a prima facie case existed against the Accused-Petitioner.

He then asked the lawyer what he meant by this. The lawyer said that it meant that ‘the time wasn’t sufficient’ for the tribunal to look at the papers.

The tribunal chairman responded, ‘It is up to us. We saw DVD’s not documents. Our requirement is to peruse the formal charge and then documents. We don’t have to read all of it to take cognizance. We have to think that there is sufficient evidence.’

In relation to the question of the adequacy ‘reasons’ the chairman said at one point that the orders relating to cognisance are usually very simple without explanation. Mr. Al-Amin replied that the need for reasons is a general principal and should apply to all the order/judgment of the tribunal.

The tribunal did not ask the prosecution to respond to these arguments, but immediately passed the following order:
‘The application filed by the defence praying for review of the cognizance order dated 14/07/2011 July is taken up for hearing. Mr Tanvir Ahmed Al Amin, learned counsel appearing for the petitioner, read the petition against the order that the tribunal passed. He submits that the order passed by this tribunal did not contain any reasoning. He further submitted that offences are not clearly defined and as such there could be no cognizance of the offences. He also cited ICCPR, Nuremberg Charter and Tokyo Charter rules for his argument and prayed that the tribunal will consider all these and refuse to take cognizance of the tribunal.

We heard the learned counsel and perused the review application. We are of the view that cognizance is merely the mental decision of a judge to take if they want to take the case further.

The learned counsel also submitted that the judges of this tribunal perused 100 pages in only three days and many papers were illegible.

Upon consideration, we are of the view that learned counsel went beyond the jurisdiction of what is cognizance. Secondly, the prosecution submitted a written formal charge and along with the formal charge they submitted three DVD’s for us to peruse with recorded investigation from which the formal charge was created. We have perused those. In papers, submitted by the prosecution, the illegible pages were not considered by the tribunal and will not be considered later. Upon perusal of different witnesses’ statement we took judicial notice.

We are of the view that witness no 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17, 18, 20, 22, 23, 24 have stated that the accused was involved in torture, looting, extermination in several places of Bangladesh. It appeared that accused was also involved in killing of some people of Hindu community and the Awami League. Allegations are available that he forcefully converted Hindus to Muslims. All comes under purview of crimes against humanity. So we took cognizance.

By disposing of this application we stand by the cognizance given earlier. We don’t find any merit in the application and the application is thus summarily rejected.
Framing of Charge
The tribunal chairman asked the chief prosecutor whether he was ready for the hearing on framing of charge. The prosecutor said that he was and had filed their submission that day.

The chairman then said that he would now hear the application for an adjournment.

Tajul Islam for the defence said that there were still 72 pages of illegible documents amongst the 97 new pages that they were given.

He made the following points from his petition:
- that the the Prosecution cannot benefit from the illegible documents is respectfully irrelevant and incorrect. The documents may contain evidence in favour of the accused which would be of no use to the prosecution but central to the defence of the Accused-Petitioner.
- that this therefore impedes the preparation of the defence of the accused and constitutes a violation of Article 14 (3) (b) ICCPR.
- that as the Prosecution was unable to re-submit the 72 pages in a legible form within the period granted by the Tribunal, the accused prays that the it grants a further period of adjournment directing the prosecution to submit typed copies of the remaining illegible 72 pages.

‘Without preparation it is impossible for us to take part in the hearing,’ he said. ‘We had privileged communication with the accused petitioner on the 16th august from 11:45 to 4:30, but it did not take place in a quiet room (JIS room). The interview took place in a corridor near the Jail Super's room, server room and other rooms. It was not a quite place for an effective interview. Peoples were going in and out of the rooms through the corridor and that hampered the interview. So it was really hard to concentrate, and the defence counsel could only go through sicty percent of the formal charge and 50 pages of the more-than-500-pages documents.’ He said that they had to stop the meeting at 4.30 as their client was not feeling well.

The tribunal chairman said, ‘You don’t have to read all those pages to him.’

Islam said, ‘We are not reading out formal charge to him here. It is much more complex. To put up legal arguments I have to explain those to him.

The chairman then said, ‘Do you know what is privileged communication? It is that any information taken from the client may be kept in secret and it does not require that the communication between the client and the lawyer need to be in confidence.

Mr. Islam responded by saying that this was not proper meaning of privileged communication which requires that there should be confidentiality of communication between the client and his layer.

The tribunal chairman then asked, ‘When you were consulting, did anyone sit beside you? Or surround you?’

The lawyer said, ‘Yes, several people sat around us. There were always people coming and going.’

The Tribunal chairman said, ‘The special branch people will always be there.’

Islam responded, ‘But article 682, 683 and 687 of the Bengal Jail code the law says no one can be there during a privileged communication. If they can hear everything what is the point of privileged communication? If it is an open discussion, my lord I’ll be prejudiced. There are 570 pages of document we are talking about.’

One member of the Tribunal enquired whether these rules were applicable in Bangladesh. Islam replied yes. The tribunal chairman then said, ‘You need mainly the formal charge not all the pages.’

The lawyer said, ‘My lord, he had to recollect the things that happened 40 years ago. Prosecution took 42 days for scrutinising documents only. We got only one day. It is not possible for him to go through all the charges that there are against him in this time.

He went onto say, that this is a special case and a special Tribunal. 'We have to fully clarify the allegations against the accused petitioner to him. We need at least seven days to clear out all things to him and then work upon his instructions. He has to know what the charges against him are. So we want: (a) Reasonable period of adjournment; (b) Legible documents; (c) Seven days for consulting and privileged communication.'

The tribunal chair then asked the Prosecutor, what his reply was to the issue of legibility of documents. ‘97 pages were illegible. You provided them again. Now they are saying 72 pages are still illegible. What do you say?’

The prosecutor, Zead-Al-Malum then said, ‘Your lordship, lets have a look at Page 251 and Page 300. It is a newspaper cutting; there is date and time there of the publication. This is a public document and accessible to all. So the defence should check it out for themselves. They also marked some pages today as illegible such as Page 24, 25. Look at Page 24, they are completely fine.'

The tribunal then said, ‘Yes, but there are some pages that are absolutely unreadable. Such as page 60.’

‘That is a newspaper cutting of “Dainik Purbadesh” published on 19 December 1970. It is out there. They can collect it if they want. It’s just not practical to provide all the original newspaper cutting. We could’ve only mentioned the name and date of publication for the newspaper. They have to find it themselves. We will provide all those cutting during trial and they can see it then.'

The tribunal chair then said, ‘You can’t actually expect them to find something that you submitted.’ He then asked about the issue of the privileged communication?

The prosecutor said, ‘They sought seven days but it is not clear from when this seven-day is going to start. Another thing is that we didn’t take time for anything. The investigation procedure took time, and we applied for time so that it can finish. ‘

The tribunal chair told the prosecution that, ‘Just to remind you that if there are illegible document they won’t be admissible as evidence in this tribunal.’

The defence lawyer then replied. ‘Prosecution is relying on the documents, which they gave to us, for their case. Now they are saying that they gave the newspaper name and publication date and we have to find it by ourselves. What sort of mockery is this? They are legally bound to give us legible copies. They should. How can they say we’ll peruse the newspaper cutting when hearing will take place? They are bound to provide us that. If the documents are illegible they should be excluded from the evidence.

He said that rule 682 of the Bengal Jail provides that there can be no one present during a meeting between an un-convicted prisoner and his lawyer, relatives and near relatives. The prisoner is entitled to get privileged communication. Rule 683 and 687 also entitles the accused to get privileged communication, where no one except the lawyer and the client will be present. They can’t listen to what they will discuss, there can be any one surrounding the meeting and they can’t interfere in exchanging of any documents.

If client doesn’t know the full allegations against him and can not provide any instruction, lawyer can’t prepare legal arguments and grounds.

The tribunal chairman said that the argument before the court was a legal one and it was not necessary to speak to the client for this

In its written application, the defence also made the following legal arguments:
- that Article 14 (3) (b) of the International Covenant for Civil and Political Rights (“ICCPR”) provides for the right of an accused to have: “adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.
- that the Human Rights Committee has on numerous occasion held that: “the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms ”. That this is a universal right to which Bangladesh must adhere to as State Party to the ICCPR.
= that in its General Comment No. 13, the HRC has held that the right to adequate facilities under Article 14 (3) (b) ICCPR includes “access to documents and other evidence which the accused requires to prepare his case”.
- furthermore, in its General Comment No. 31, the HRC has held that under Article 14(3)(b) ICCPR “[t]here is an obligation to grant reasonable requests for adjournment, in particular, when the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed”.
- that Rule 37 of the Rules of Procedure provides: “When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing”.
- that this is followed by Rule 38 (1): “If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged”.
- That from the above rules it is clear that the threshold for the framing of the charges is that of “sufficient ground to presume” and that both parties will have the opportunity to be heard.
- that the submissions to be heard by both parties will involve complex legal arguments concerning international crimes and provide an opportunity for the accused to challenge the evidence contained in the prosecution Formal Charges Documents. That the analysis of evidence and formulation of complex objections requires time.
- that there is inadequate time for the preparation of defence before the hearing for the framing of the charges, which constitutes a violation of Article 14(3)(b) ICCPR.

The Tribunal then passed an order
The application praying for reasonable period of adjournment, immediate supply of legible copies of formal charge and one week privileged communication was taken up for hearing. Mr Tajul Islam, learned counsel, said they couldn’t complete their preparation to take part in the hearing and they couldn’t communicate with the accused. So hearing today should be adjourned.

He pressed before us that the copies which has been supplied by the prosecution is unreadable and he can’t prepare his case. So he prayed for adjournment.

Haider Ali, learned prosecutor, said they are ready for charge hearing so there is no question for adjournment. He said that legible copies will be provided during formal hearing. All of us will read them later. But now it is not practical to provide them now.

He also said that for framing charge consulting the client is not necessary and only lawyer will peruse the document and prepare the case. As such he said there is no need for adjournment.

We perused the application and heard arguments from both sides.

Regarding typed copies, the illegible copies will be kept out of consideration of the tribunal. However by referring to section 9(4) we are of the view that the Prosecution if it thinks proper can provide further evidence.

With respect to privileged communication, the learned counsel said they are always prepared to meet accused with the permission from jail authority. In this respect we cite jail court act section 682, which provides that un-convicted and civil prisoners will get all reasonable facilities and privileged communication with their friend, relatives and near relatives. We direct the jail authority according to Bengal jail court rule 682, 683, that if the learned counsel wants to meet the accused, they should permit them to have privileged communication. Let a copy of this order be sent to the jail authority.

With respect to adjournment the prosecution said they are ready. But defence said they are not as they couldn’t peruse the formal charge with the accused petitioner. We are of the view that consulting is not necessary. However, as they are not ready we would give them time till next Sunday.
Islam protested against the date, and the tribunal chairman said, ‘We can’t adjourn the hearing now if we follow the law, we can’t.’

Islam said, ‘Your lordship has every power to adjourn for the ends of justice. The client doesn’t know what the allegations are. I have to know what he wants me to say in the court. There’s no rule regarding adjournment. The prosecution got 42 days and we got only one! More time should be provided to us for the ends of justice. We received the copy on 27th July and then applied for privileged communication to jail authority on 3rd august. But we were not allowed and then we came to the tribunal seeking order. Moreover, on humanitarian grounds, the accused petitioner will perform Itikaf and he is a religious leader.

The prosecutor said, ‘We should start the charge hearing quickly. Rule 35 provides that when the case is ready for trial, the Tribunal shall proceed to hear the case in accordance with the procedure of trial under section 10 of the Act on the basis of a charge to be framed considering the formal charge, Investigation Report together with the documents and materials have been produced and submitted in support of such report.

Islam said that ‘The trial should go on reasonably and judiciously. One minister said, “The trial will begin in August”, so there is a chance that the public will think that the tribunal is affected by that comment.’

The tribunal continued giving its order.
The prosecution has submitted that there should not be any adjournment at the point of charge hearing. The defence counsel said they have to prepare themselves for charge because they couldn’t consult with client regarding allegations. The learned counsel received the document that is formal charge and statement of witnesses on 27th July. Today is 18/8/11, we do not understand why they couldn’t consult during this period. We already observed that providing information about allegation to client is not necessary.

However, hearing the strong submission, by Mr Tajul Islam that he is not ready for the hearing, we allow some time for him to peruse the documents. Let the case be adjourned till 23/8/2011.

Defence Press conference, Tajul Islam
"You all know that today we applied for extension of time for the charge hearing. We sought adjournment because, in this special tribunal where trial is going on for war crimes and crimes against humanity, the first thing the law says is that you have to promptly inform the accused about the allegations against him. You all know that the accused was not allowed to know about the specific allegations against him till 27 July 2011. On that date, we got the formal charge and the investigation report from the prosecution, through which we came to know what the specific allegations against my client are, which my client must know if I want to defend him. Time and again, we informed the jail authority that we want to meet the client to let him know what are the specific allegations against him and to take instruction from him so that we can prepare the defence. Jail authority did not allow us. On 3 August 2011 we submitted a written application to the jail authority which was also rejected. Then we came to the tribunal and applied for privileged communication so that we can meet the client in private, according to jail court rules (no one will be present and can not listen to the conversation), and take instructions from him and take part in charge hearing. The tribunal only allowed us one day on 10 August 2011 for privileged communication. The date was set for 16 August 2011. We were provided with 542 pages of documents. All the allegations are 40-year old. We could only progress up to 50 pages in five hours consultation with Maolana Sayedee, where we explained and examined the allegations against him. Maolana Sayedee still is unaware of what are the other allegations in the remaining pages, more than 400. It is absolutely impossible for us to provide our arguments for the client in the court without letting him know about all the allegations against him and taking his instructions. That is why we asked for extension of time. We also cited humanitarian ground in light of the holy month of Ramadan.

"The second application was a review petition for the cognizance order. It was not clear on what grounds the cognizance was taken. Our act regarding this is not clear about the definition of the crimes such as crimes against humanity. International law says there can be no trial of a crime which is not defined. We asked the tribunal if there is no definite crime how you took cognizance and prayed for review of the order. First the crime has to be defined and at least till then the hearing should be adjourned. The tribunal rejected the plea and also set the charge hearing date on 23 August 2011. We said that the tribunal is setting up hearing dates in a rush.

There were 97 pages of illegible documents that were provided at first, and the later edition had 72 pages were illegible. How can we make arguments based on some documents that can not be read and what will the client understand from those anyway? The prosecution said that there is no need for readability. So, it seems that whatever they say we have to abide by it, and we have to take whatever punishment is given to us. If those things are not resolved, no client or lawyer can ever possibly take part in such sensitive case. So, for the sake of justice, for the sake of humanity and human rights we prayed for extension of time. But the tribunal set the date on 23 August now.

We also mentioned one thing to the tribunal that influential ministers of the government said that the trial will start in the month of August. The law minister, who is a responsible person and not at all involved with this trial, said the charges will be framed in August. We reminded the tribunal about those remarks and said that when the tribunal sets up a date for framing charges in the month of August after some powerful minister say things like that, there will be suspicion and confusion created among the public. They might think that there is a connection between the remarks of the minister and the tribunal order. It will hit public confidence. We also said not only justice has to be served but justice must also be seen to have been done. You have to show that justice was done. Considering all those grounds, we wanted the charge hearing to happen after the Eid. But the tribunal did not listen to us and set up the date on 23 August. We said that if things continue to go on like this we might not be able to defend this client.

Journo: Will you not appear in the next hearing?

This will depend on the instruction from our client. But it is true that, if my client is deprived from getting proper legal defence, it might be difficult. He doesn’t know what the allegations against him are and he has to know all that, and then he can say to us how to put the arguments in the court. This is about the right to get justice throughout the world. Denying all these, the tribunal said that the client doesn’t have to know anything, lawyer can argue on his own.

Journo: Are you giving any subtle threats?

No we are not giving any threat to anyone. We are saying everything very reasonably. Legal defence means I will defend my client according to law. If he is deprived of the legal opportunities, no one will be interested to take part in a farce show. We still believe that the tribunal will consider all those things and will allow logical time frame for everything. We are not declaring anything clearly now. But, if we don’t get the chance to properly defend our client, we’ll see what happens in the future.

Journo: You can let your client know as the hearing of the charges take place.

This is like putting the carriage before the horse. You have to know the allegations first. How would the lawyer put his arguments if his client doesn’t know anything? First you let someone know, and then comes the question of putting arguments. The day he was arrested the court said there is no need to hear anything from our side. The day the court took cognizance we were present, but they said there is no need to hear anything from our side. There will be hearing of charge framing and the person who is accused is in dark about it – how come you call it justice?

Journo: There are 542 pages of documents and you said you could only discuss 50 pages with your client. Do you have to go word by word of every page with your client to let him know about his allegations?

This doesn’t work like that – going word by word. There are 40 different allegations in 40 different dates against him. I have to tell him the incidents, the dates etc. He has to recollect those incidents that happened 40 years ago, he has to remember those people, he has to remember who can testify for him and what happened actually. Then he can say to me that those were the incidents and such and such is my statement regarding those. International law says he has to understand the whole thing; this is for the sake of justice, this is what the act says. It’s not that I need the time to read 542 pages of documents to him page by page, I have to let him know and get the explanation from him about what happened exactly.

Journo: What was the decision regarding visiting your client in jail?

You know jail has some definite laws regarding visit to the accused. It is stated in the law that they can not hear anything what is said between me and the client, they can not obstruct if any exchange of documents takes place, and they can’t even look at them. But jail court did not allow that, even if it was under the provision of jail court. That’s why we filed a petition to the tribunal, and the tribunal said the jail authority should allow us according to the law.

Prosecution press conference
Dear journalists, today the defence counsel filed a petition for adjournment of the hearing. From the prosecution’s side, we were ready for the charge hearing, and we told that to the tribunal. In the backdrop of the adjournment petition from the defence counsel, the next hearing date is fixed on 23 August 2011. There was another application from the defence counsel for review of the cognizance order given by the tribunal on 14 July 2011. The tribunal heard their review petition with patience and summarily rejected that.

The tribunal, backing their order, cited some witnesses’ statement and said that there is prima facie evidence available. The statements that they cited are legible and do not belong to the illegible pages of the documents said by the defence counsel. The tribunal stood by their previous order and the review petition was rejected.

Journo: There was some allegation from the defence counsel that the trial is rushed to start from this month (August) in the wake of a call from a minister who was reported saying that the trial will start from August. What do you have to say about this?

The trial is going on with its normal pace following the standard act and rules. The investigation procedure and charge framing, everything was completed according to the law and the trial will go on just the way it was as usual. So there is no ground for the defence counsel to say that the trial is rushed by some outside influence.

Thank you all.

1. Section 29(1) of the Rules states that, “The Tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.” This suggests that for the tribunal to take cognisance of any offence it must decide, in relation to that offence, that there was a prima face case for trial. If there are more than one offences it must makes this finding for each and every offence. Prima facie is not too rigorous a test, it does not require proof beyond a reasonable dobut, but it does mean that there needs to be sufficient evidence that suggests an offence has been committed.

In its order on 14 July taking cognisance, the Tribunal provided no reasons for taking cognisance. It simply states: "After perusing those materials, we are of the view that evidence of the case are prima facie available, regarding the offences stated under section 3(2) of the ICT Act 1973 against the accused Delwar Hossain Sayedee.'

In its order in today hearing, it does provide more reasons. It states: 'We are of the view that witness no 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17, 18, 20, 22, 23, 24 have stated that the accused was involved in torture, looting, extermination in several places of Bangladesh. It appeared that accused was also involved in killing of some people of Hindu community and the Awami League. Allegations are available that he forcefully converted Hindus to Muslims. All comes under purview of crimes against humanity. So we took cognizance.'

A number of points about this:
- the order does not engage in any way with a single one of the legal arguments made by the defence. This lack of engagement is pretty breathtaking. In order for their to be a prima facie case, the tribunal has to be clear about the nature of the offences which they are prosecuting, and must certainly consider submissions that an accused cant be prosecuted for certain offences or that certain offences need to be interpreted in a particular way.
- The order mentions 20 witnesses. At the time this order was given it was not known how these witnesses linked into the specific charges against Sayedee, but on 4 September we came to know that these witnesses only link to 17 of the 31 alleged charges (counts: 1, 3, 5, 6, 7, 8, 9, 10, 12, 15, 17, 19, 22, 23, 26, 27, 37). What about the other 14 counts. It appears that the tribunal has not given consideration at all to 14 of the 31 counts set out in the prosecution charge application.
- Moreover all of these witnesses link to counts relating to alleged crimes against humanity, but in the charge application there are five offences dealing with Genocide. This appears to mean that there was no cognisance given to any genocide offences.
- A further point is that the the tribunal has apparently assumed there is a prima facie case against an accused even when there is only one witness supporting the allegation. For example witness 24 is the only witness referred to in the tribunal order supporting count 5 relating to the killing of a person

2. It is notable that there appears to be a lack of appreciation on the part of the tribunal about the importance of a lawyer consulting with his client, and also the meaning of 'priviliged communication'. The tribunal seemed to think, for example, that it was OK if special branch people were generally around the lawyers and client at the time of their meeting.

No comments:

Post a Comment