4 Sep 2011: Charge framing petition

This is a long post that principally concerns the full application by the prosecution for the court to frame charges against Delwar Hossain Sayedee who was present in court. This hearing has been adjourned a number of times . The prosecution have already set out their charges in an application to the court, providing the evidence upon which they will rely, and on the basis of this the court has given cognisance (see 14 July and 18 August). The process now is 'charge framing' by the tribunal itself, where the court hears both parties and as a result either discharges the accused or alternatively frames charges to which the accused must plead. The prosecution has also submitted a draft set of charges, which one supposes is what they want the court to charge Sayedee with. The hearing is particularly interesting as it allowed the public for the first time to hear in some detail the nature of the charges against Sayedee. See comments at end.

Application for adjournment
The application was made by the defence Tajul Islam. The tribunal chairman asked him him, ‘Why do you always come up with prayer for adjournment? It’s all the same every time. Shall we pass the order now?’

Islam asked the tribunal chair if he could first state the grounds for adjournment.

He said that after the last hearing (24 August) there was Eid vacation and there has been only one available working day, 29 August to work but the office was closed from 26 August. He said that they had only been able to talk with Maulana Delwar Hossain Sayedee on 27 August during the vacation for three hours. ‘Eid is the biggest holiday in Bangladesh and everyone enjoys their vacation. It is humanely impossible for anyone to work at that time. We had to give time to our family and friends,’ he said.

Islam went onto say that, ‘A total of 61 pages were submitted to us on 23 August 2011, and we came to the ICT hearing on 24 August 2011. We also had to attend another tribunal hearing on 25 August. So we have had insufficient time to consult with our client and take his instructions, which is absolutely essential to prepare my arguments.’.

He then read out rule 37 of the rules of procedure which state that: ‘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.’

‘It is obvious,’ he then said, ‘that first the accused has to know what are the charges against him and to go through the documents. Then the lawyers have to know about them too and prepare their arguments and get the opportunity of being heard.’

The tribunal then stopped Islam and said. ‘Look Mr Tajul, we will hear the prosecution’s case and you will also have your chance of being heard. So, I’m requesting you to sit down.’

Application by Defence to frame the charges
The chief prosecutor stood up. He started by making the following comment: ‘This tribunal is here today to hear charge matters. The fact remains that your lordship are judges of great eminence and greatly experienced. The instant case that has come up before your lordship relates to a case when the nation rose to its feet for their demand of democracy and freedom. Your lordship knows the instant case is about getting justice for the atrocities that was committed against a nation that wanted the right of self determination and freedom. Your lordships also know that the perpetrators took the whole nation to a holocaust. So those are needed to be taken to trial. That’s why the International Crimes Tribunal was formed under the ICT act 1973 passed in the parliament. The prosecution and the investigation agency were formed duly under the act and the investigation agency carried out the investigation process and based on the findings the prosecution pressed the formal charge to the tribunal.

‘After reviewing the investigation report and formal charge your lordships has taken cognizance of the offence, and the tribunal is ready for the charge hearing. The prosecution is glad to inform that we are ready for hearing of the charge matter. But the defence has prayed for time over and over again, and time was given to them. The only thing to consider now is whether the evidence pressed in the investigation report, and witness statements are sufficient enough for framing charges.’

The chief prosecutor then went to the bench of judges and gave a document.

The Tribunal chair said, ‘You have submitted a proposed charge. But is there any argument that you want to place before the tribunal in support of the proposed charge?’

The chief prosecutor then said that Mr Haider Ali will continue with the hearing and place the arguments.

The prosecutor Haider Ali then got up and said that he would present the factual case and then the legal grounds.

He said that the prosecution had two sets of witness statements taken by the investigation agency totaling 68. He then gave two volumes of statements to the tribunal judges who questioned why it was necessary to have another list of witnesses when they already had one.

He then said, ‘First of all we’ll discuss the crimes that took place in 1971 and we’ll provide witness statements and evidences on how the accused was involved.’

He then went through the counts in turn

Count 1: Formation of Pakistani Camp and Rajakar Force camp in Pirojpur by the Accused
Ali said that a total of 18 witnesses have said that Sayedee formed the Razakar force in Pirojpur district including statements of eminent personalities against Sayedee, such as: Shariar Kabir (Writer), Jaglul Haider (Journalist) and Dr Muhammad Zafar Iqbal (Writer, professor).

He asked the tribunal to look at Ruhul Amin Nabi’s statement (Vol 1 witness no 1) and quoted from different parts of the statement:

“Jamaat leader Professor Golam Azam called upon like-minded peoples to form Razakar forces all around Bangladesh. After his call, Maulana Delwar Hossain Sayedee, in Pirojpur, initiated the formation of the Razakar force in Pirojpur. He asked us to join the force of Razakar.’ (3rd paragraph page 1)

“There were Pakistani army in the village. Maulana Delwar Hossain Sayedee was waiting along with his Razakar force and took the army to the Hindu houses and during June 1971 they also captured some Liberation War forces (Mukti forces). They plundered goods from the Hindus and piled the loot. Maulana Delwar Hossain Sayedee passed a religious edict saying that it is Jayez (Arabic, meaning rightful/fair/legitimate) to loot goods from Hindus. Many Hindu women were raped and many of them had fled to India.

Some persons in the village such as Makhon Shaha, Benu Madhab, Ganesh Chandra Roy and others were forcibly converted into Muslims and made to say prayers. Some of them are now dead and some fled to India. (Page 2 3rd paragraph)

The tribunal then interrupted him and said, ‘I think these descriptions are extra and not necessary. Can you skip all the descriptions and long histories? We can’t actually let you go through and read out all the 18 witness statements. You can just name the witnesses and probably state one or two of them in detail, the one’s you think are important.’

The prosecutor agreed and said that the witnesses for this count are:
Ruhul Amin Nabi, Abdul Latif, Shahriar Kabir, Md Zafar Iqbal, Jewel Aich, Tojammel Hossain, Syed Md Sharafat Ali [Vol 2 (16)], Md Soleman Hossain [Vol 2 (32)], Alhaj Md Sadruddin [Vol 2 (33)], Hossain Ali [Vol 2 (34)], Khondker Md Shahidullah [Vol 2 (35)], Zulfikar Ali Manik, Md Mahbubul Howlader, Mokhles Moshari [Vol 1 (15)], AKM Ziauddin Ahmed, AKM Abdul Awal, Md Mizanur Rahman Talukdar

Ali said supporting documents for this count include: National Democratic Commission report, War Crimes facts finding committee report, District commissioner Pirojpur report, reports of the newspapers the Daily Janakantha and Daily Bhorer Kagoj, and Investigative reports of Ekushey TV and ATN Bangla.

The prosecution then read out section 3(2)(a) of the 1973 Act relating to ‘crimes against humanity’

The following acts or any of them are crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility, namely:-
(a) Crimes against Humanity: namely, 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;

The prosecutor then said that he will present these charges in the order set out in this definition.

Murder as Crime Against Humanity – Section 3(2)(a) of ICTA
Count 2: One day between 3rd May and 16th December 1971, the killing of Bhagirthi
Ali said that there was one witness for this, Ganesh Chandra Shaha (45), the son of the woman who was killed, (Vol 2 (27)). He then read out part of the statement:

“My name is Ganesh Chandra Shaha, age 45. In 1971 I was 5. My father died before the war in 1971. My mother used to go the Razakar and army camps to wash the utensils and perform other chores. The Razakar told the army that she was passing inside information from the camps to the Mukti force. They killed my mother and threw her in the river. I heard from people that Maulana Delwar Hossain Sayedee helped catch her and gave her in to the Pak army.”

The Daily Azad newspaper also stated the same facts.

The tribunal chairman asked the prosecution, ‘How do you link Mr Sayedee to this allegation?’ The prosecutor responded, ‘Our witness heard it from people, and reports from the Daily Azad also supports this. He will also come to the court when the time comes and we can hear the story from him.’

Count 3: On 8th May 1971, the killing of Md Ibrahim alias Kutti
Al1 said that there are 15 witnesses which include: Matin Howlader, Sultan Abdul, Ayub Ali and Mokhles Moshari (nos, 4, 18, 19, 20, 26, 32, 52, 53, 54, 21, 25, 33, 34, 37, 38). He added that supporting evidence included an ATN Bangla investigative report.

Count 4: One day between 25 May to 31 June, Killing of Shaheb Ali
Prosecutor said that the Pakistani Army reached Pirojpur on 3rd May 1971 and so lots of references start from this date. There are three witnesses to the killing (nos 52, 53, 54)

Count 5: On 2nd June 1971, the killing of Bisha Bali
Ali said that she was tied with a tree and shot from close range. There are three witnesses (nos 28, 24, 17)

Abduction, Extermination, Deportation, Confinement, Torture and other Inhumane Acts as Crimes against Humanity
Count 6: Between 4th May to 16th December 1971, general allegation of abduction, extermination, deportation, confinement, torture
There were six witnesses including Ajit Kumar Singh, Ruhul Amin and Manik Howlader (nos 48, 51, 2, 34, 30, 50). Supported by Report of Daily Janakantha dated 5th March 2001

Count 7: On 4th May 1971 (a) The destruction of many hindu houses in 13 areas of Pirojpur Town and (b) destroying 3 houses and looting valuables of Monindro Nath Mistri. Ali said that there were five witnesses to these incidents including: Advocate Gopal Krishna Mandal and Suresh Chandra Mandal (nos 10, 11, 12, 13, 39) and that there was also a supporting report from The daily Janakantha, 5th March 2001

Count 8: Looting 30/35 shops including Makhon Shaha shop on 7th May 1971
The prosecutor said that there are six witnesses including Ruhul Amin Nabi, Abdul Matin Howlader, Manik Moshari and Shahidul Islam Khan (nos 1, 2, 19, 18, 20, 27, 4, 15, 25, 26) which are supported by reports published in The Daily Janakantha, Shomokal, and ATN Bangla.

Count 9 Destruction and looting of houses and valuables of Nur Khan, Ayub Ai Talukder, Manik Poshari and his brothers, Khan Shaheb, Boijudin company, Moijoddin, Himangshu and other Hindus on 8th May 1971
Alis said that there are 15 witnesses to this (nos 25, 19, 30, 29, 37, 20, 18, 33, 34, 36, 4, 32, 21, 35, 44) and supporting documents from report of Daily Janakantha, Report of Shamakal, Report of ETV, and Report of ATN Bangla TV

Count 10 Torturing Abdul Mannan Talukder and looting and destroying many houses of Charkhali village on 17/18 May 1971
There was one witness to this (no. 3)

Count 11 Between 25 and 31 May, destroying and looting many houses in Hindu areas including house of Bimal Howlader under Nesarabad Police Station
There was one witness to this (41)

Count 12: On 2nd June 1971 (a) Looting and destroying houses of Abdul Halim Babul in Nolbunia village at 9 am and (b) Looting and destroying 25 houses including those of Chittoronjon Talukder, Horen Thakur, Moken Thakur, Anil Mondol, Bishabali, Sukabali, Satish Bali in Umedpur Village at 10 am
There were three witnesses to this (nos 37, 17, 18)

Count 13
One morning between 1st December to 16th December 1971, (a) destroying Hindu Area of Hoglabunia village and (b) Taking control of two rooms of Rojoni Bala of that village
There was one witness to this (no 45)

Count 14: One morning between 25th to 30th November 1971, attacking and looting the house of the Talukders of Indurkani Village.
There are three witnesses to this (nos 56, 55, 57)

Count 15 One Thursday between 15th to 21 June 1971, looting and taking over Modon Shaha’s shop and house
There were nine witnesses to this (nos: 17, 19, 22, 23, 36, 45, 20, 26, 34). Supporting documents include a report from the Daily Janakanths and one from the Daily Shamakal.

Count 16: One morning between 4th May to 14th June 1971, (a) abducting and torturing uncounted men/women of Tona Village in Army camp of Tejoskhathi Govt High School and (b) destroyed Amjad Hossain’s house and (c) looting two bonze plates of Hindu Boshonto and Suren. Boshanta, a Hindu man, who was eating rice on a brass plate. Sayedee came in and kicked the plate and chucked his food away.
There are two witnesses to this (nos: 43, 45). In relation to (a) Ali noted that this count was repeated in Count 20. The tribunal Chairman told him to continue and to consider this later on. In relation to (c) one of the judges interrupted and said, ‘I don’t understand. How do you charge this incident? What is the legal point here?' The prosecutor responded by saying, ‘My lord, it was part of the torture that was carried out at that time. It does not matter how much looting took place for it to be a crime. The tribunal judge said, ‘But still anyone can be subjected to this act, it doesn’t go with the other charges.’

Count 17: On 8th May 1971 between 1.30 pm to 3.30 pm, attacking, looting and destroying household of freedom fighter Shahidul Islam and abducting and torturing his father Nurul Islam of Baduria-Chitholia Village
There were seven witnesses (nos 25, 19, 30, 29, 37, 33, 34)

Count 18: On 17th/18th May 1971 between 6 and 7.pm, torturing and abducting Abdul Mannan Talukder. One witness (no.3). The prosecutor said that he did not want to press this count as according to him the prosecution may not have sufficient evidence. The tribunal chairman said that its removal could be considered later on.

Count 19: On 2nd June 1971, (a) attacking, destroying and looting Khosru and Amir Khan’s house in Shonkor Pasha Villege and physically & mentally tortured people living there; and (b) At about 12 noon attacking, looting and destroying Mahbub Alam Howlader’s house in Tengrakhali villege and physically & mentally tortured his elder brother Abdul Majid Howlader
Three witnesses are available (nos, 1, 21, 37)

Count 20: Abducting and torturing uncounted men and women of Tona Village in Army camp of Tejoskhathi Govt High School.
(This count is repeated in Count – 16(a))Two witnesses are available (nos 43 and 45)

Rape as Crime against Humanity
Count 21 Between 1st Dec to 16th Dec 1971 attacking the houses in the Hindu Area of Hoglabunia and raped Shefali Ghorami
He said that there was one witness to this charge, (no 45)

Count 22: Between 25th June to 30th June 1971, attacking the household of Gourongo Saha and handing over to the Pakistan army the three sisters, Mahamaya, Anna Rani and Komla Rani in Umedpur; and (b) killing Krishno Shaha and then abducted his daughter and numerous out Hindu women and handed them over to Pakistani Army to be raped.
There were seven witnesses to these allegations (nos, 45, 47, 19, 2, 30, 34, 36)

Count 23: One day between 3rd May to 16th December 1971, detained Bhanu Saha of Parerhat Bazar at her home and raped her repeatedly.
There are five witnesses to this (nos 45, 2, 30, 34, 36). Supporting documents include press report of Janakantha, TV report of ETV and Report of ATN Bangla TV

Count 24: One morning between 25th November to 30th November 1971, (a) attacking and looting Talukder Bari (House) of Indurkani and (b) abducting 85 men/women of Talukder Bari and sending five of them to Pirojpur Army Camp who tortured the men and raped the women.
He said that there were three witnesses (nos 56, 55, 57)

Count 25: Converting between 100 and 150 Hindus to Muslims between 3rd May to 16th December 1971
There were five witnesses to this (nos, 45, 48, 2, 30, 47)

Genocide
Count 26: On 4th May 1971, (a) killing 20 people behind Mashimpur Bus stand (b) killing 13 people in Mashimpur Hindu Area and (c) killing 4 Hindus behind LGED
He said that there were five witnesses to this (nos 10, 11, 12, 13, 14). It is supported by a report of Daily Janakantha

Count 27: On 5th May 1971 shooting and killing SDPO Fayzur Rahman, SDO Md Abdur Razzaq, and Deputy Magistrate Mizanur Rahman at the bank of Baleshor River
There were two witnesses to this (nos 8, 9)

Count 28: One day between 25th May to 31st May 1971 capturing Bimol Howlader and his father and bringing another 2500/3000 unarmed Benglai people to Kuriana Guava Garden and killing them
There were four witnesses (nos 40, 41, 42, 43)

Count 29: One day between 25th May and 31st July 1971 killing 10 people (seven were named) and handed them over to Pirojpur Army camp and killing or instructing them to be killed with bodies disposed of in river.
There is one witness to this (no 45). The prosecutor informed the court that there were documents in support of this but did not identify those documents

Count 30: One day between 4th May to 16th December 1971, capturing 14 Hindus and handing them to Pakistan army camp in Pirojpur and killed them and disposed of bodies in river
There was one witness to this (no 38). The prosecutor informed the Court that there were documents in support of this charge did not identify those documents

Abetment and Complicity
Count 31: (a) abatement and complicity in murder, extermination, deportation, abduction, confinement, torture, rape and other Inhumane acts as Crime Against Humanity, (b) abetment and Complicity in killing, causing serious bodily or mental harm to member of the group as genocide
He said that abetment and Complicity will be proved by 18 witnesses, though these were not identified. These are ‘Leadership offences’ and the prosecution do not need to prove commission of the main offence, he said.

This was the end of the charges.

The prosecution then stated, ‘My lord all the charges that we are presenting today were reported in different newspaper/publications and media. We tried to collect those reports and evidences and have successfully collected it. The eye-witnesses were direct.. However, there were some problems while collecting the evidences inside the country. Because after 1975, officially and unofficially many evidences were destroyed or there had been many attempts to destroy them. Investigation agency has also found proof to verify this claim.

The tribunal chairman then said, ‘I have a small question. In one of the charges involving Mr Azahar (count 12) I can see two different names for a village. What is the actual name of the village? In one copy I can see that it’s Holbunia and in another Nolbunia. It’s different in the formal charge and in the witness statement. You have to make it clear and be certain. Either it is Holbunia or it is Nolbunia.’

The prosecutor said that he would have a look at it.

He then started on legal submissions.

Haider Ali quoted from the preamble of the International Crimes Tribunal act 1973 which states that it is:

‘An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law. Whereas it is expedient to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law and for matters connected therewith.’

He then said, ‘My lord, we have in sequence presented the charges that are covered under ICT rules of procedure 3(2)(a) and also the Geneva Convention. The crimes that were committed were devastating and inhuman. These offences we presented are defined under crimes against humanity in specified sections of law. So, it is appropriate now to frame the charges against the accused as there are overwhelming evidences available against him.’

He then quoted from ICT rules of procedure rule 29(1): ‘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.’

The prosecutor said that this stage above had now been passed. He then quoted from section 9(5) of the 1973 Act: ‘A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial.’

He said, ‘We have also passed this stage.’ He said that the tribunal was now in between section 10 (1)(a) and (b) of the 1973 Act. He then quoted these two subsections.

10. (1) The following procedure shall be followed at a trial before a Tribunal, namely:-
(a) the charge shall be read out;
(b) the Tribunal shall ask each accused person whether he pleads guilty or not-guilty;

The prosecutor went on and said, ‘If the charge is framed and the accused pleads not guilty he’ll get at least 21 days for preparation of his case.’

He said, that all the crimes were defined in section 3 of the Act – we do not need to look into the definition of Genocide, or Crimes against Humanity etc in other international statutes as some may suggest. Theses crimes are sufficiently defined in our own domestic law i.e. ICTA. 1973. With regard to the violation of Geneva Convention, he said that they may need to look into international laws.

There was a discussion about the meaning of the words ‘other inhumane acts’ in the definition of crimes against humanity. The prosecutor submitted that this includes bodily injury or mutilation of dead bodies but does not include property damage as these are covered by War Crime in section 3(2)(d) of ICTA. The tribunal chairman said that property damage should be included in ‘other inhumane acts’. The prosecutor said he did not agree and that property damage was covered by section 3(2)(d) as destruction of cities, houses etc and we do not need to confuse property damage with CAH.

Ali said ‘there is no difference between ICC and ICTBD statutes except the provisions on constitution of the Tribunal. The other aspects are same.’

In relation to the issue of delay, the prosecutor said that the victims could not ask for justice for a long time due to adverse governments during the past years. The present government is favorable for this trial.

He said that the offences in the 1973 Act are internationally recognised and there is no need to follow other international laws since the Act is sufficient. There is no conflict between ICTA and other International law. Moreover the Tribunal may frame necessary rules to improve our law.

He said that the definitions of offences in Section 3(2)(a) to (h) are all in our Penal Code.

The prosecutor wanted to go through section 4 and 5 of the 1973 Act which deal with joint liability and command-responsibility for offences but the Tribunal chairman said that this was not relevant for this case.

The prosecution said that according to section 9(1) and (2) the proceeding of this case has commenced, and we are now making the case ready for trial. The defence do not need time at this stage for taking instruction from the accused as they would get time for preparation of defence after framing of charge.

The tribunal chairman said if we frame charges then the defence will get at least 3 weeks time and this may be extended for 2/3 months or even 6 months to 1 year if this is really necessary for preparation of defence.

The tribunal was adjourned for a lunch brake.

On resumption, the prosecutor clarified that the village name that the tribunal chairman had asked about was Nolbunia not Holbunia. ‘It was a printing mistake,’ he said.

Justice Jahir then said, ‘We have gone through the charges that you have presented and we have some questions to ask you. First of all, the Ibrahim Kutti killing [count 3]; how is it categorised under crimes against humanity? You took another similar type of killing under genocide category, so why not this one? In the act, murder is stated under crimes against humanity and genocide. How did you differentiate between those two? Genocide has to be murder of members of a group, race, and ethnicity. If he was from Awami Leage or even Hindu that could’ve been genocide. Do you agree? How about you put this under crimes against humanity as they are only killing. You can also have a look at act 3(2).’

He suggested that count 2 and 3 could be changed from crimes against humanity to genocide. The prosecutor agreed.

Tajul Islam then got up and said that the tribunal can’t suggest to the prosecution what to do. ‘You are suggesting to put this charge under crimes against humanity. If they made mistakes that should go in our favour. They shouldn’t get the chance to correct their mistakes.’

The tribunal chairman said, ‘Mr Tajul we are not suggesting anything. We are just stating our observations.’

The prosecutor also responded by saying that If there was any mistake in the indictment it can be amended at any stage, even before judgment. He then read out section 3(2)(a) – murder as crimes against humanity and 3(2)(c) – Genocide. Genocide, he said, must be to eliminate a group.
Islam then said, ‘But my lord, they are getting to know what is correct and what is not. The responsibility should be on their shoulder to make it correct.’

Justice Jahir then said, ‘Mr prosecutor, you have in your submission used two words: “widespread” and “systematic” attack – it was in the formal charge. Why did you include these phrases in formal charge?.’ He said that whilst this element was part of the ICC, it is not an element in the ICTY.

The prosecutor said that, ‘It is up to your lordships whether to accept this or not. The attack that was carried out was systematic and widespread. To explain the nature of attack we used those two words.’

Justice Jahir then asked why the prosecution want to include this element of ‘wide-spread and systematic attack’ as element of crimes against humanity. This is not at all necessary in our statute. It is difficult to prove this element.

Islam objected to this saying that the tribunal cannot give any suggestion to the prosecution to cure their defect/lacuna. If there is any defect in the prosecution case then the Defence should get benefit of this, he said

The chairman said that these are only enquiries and the tribunal is not making any suggestion to the prosecution.

Islam asked that his objection be recorded, and the Chairman responded by saying that ‘we know that you have objection to everything.’

Justice Jahir then asked about the killing of Fayzur Rahman, Mijanur Rahman in count 26. The prosecutor said that it was within the jurisdiction of this Tribunal considering the circumstances revealed from the prosecution witness statements.

Justice Jahir asked the prosecutor to read out witness No 8 and 9

“My name is Abdul Zabbar. I was 15 in 1971. Syed Mizanur Rahman was my brother who studied in Dhaka University. Khan Bahadur Afzal was our father and he was a leader for Narail and Jessore Awami League too. My father had a very good relationship with Sheikh Mujib and so did my brother Mizan. Pirojpur inhabitants loved him.

On 3rd may the Pak army entered Pirojpur. They attacked the villagers, murdered them, and there were rape and mass killing. Maulana Delwar Hossain Sayedee took part in all those crimes along with the Razakar force and the Pak Army. My brother Mizan absconded in the hospital and took shelter. Maulana Sayedee helped the Pak army to catch him by divulging his whereabouts. They took him beside the river and asked him to say “Pakistan zindabad”, he said “Joy Bangla”. Then they charged him with bayonets and killed him.

“My name is Sayedur Rahman Khokan. I was 24 in 1971. After the Pak Army attack there were Shanti committee, Razakar, Al badr, Al shams force everywhere. Syed Mizanur Rahman, was a hardcore Awami League politician. He had good relations with every leader and also the public. Sayedee helped kidnap him and the Pak army took him and shot him after charging bayonets.

Justice jahir said that the evidence does not directly implicate the accused with the incident. What about the accomplices Monnaf and Afzal referred to in the witness statements? Are they Prosecution witness?

Chairman said that both of them are dead. The prosecutor confirmed that this is the only evidence on this count. Monnaf and Afzal are now dead.

The prosecutor then said, ‘We submitted witness statements, Investigation report and we presented the case saying who witnessed what things. We also want to present the murder of Foyzur Rahman, father of eminent writer Humayun Ahmed. The Pakistani army killed him and threw him in the river. He was buried in a grave after that. After independence the grave was excavated and 50,000 people took part in the funeral.’

The tribunal chair said, ‘Look, Mr prosecutor, we have to see how the accused can be tagged with this killing.’ The prosecutor said, My lord, we just wanted to present that as perspective.

The prosecutor then said, ‘My lord these are all the charges and it is really evident that Maulana Delwar Hossain Sayedee played a big part in all the killing, rape, arson, looting and extermination.

These incidents happened 40 years ago and it was really hard to get hold of the evidences. But in Bangladesh every house has a history. Thorough investigation was conducted by investigation agency and they collected all the evidences. If we carefully consider them, there is sufficient material to frame a charge. The liberation war can’t be denied and we have to prove if the accused was involved in the crimes or not. There is compelling evidence that he was involved. We have all the elements now, we have the act 1973 (formed in the parliament), and we have competent judges, so charges can be framed.

The chairman then asked the defence lawyers whether they can you commence their hearing on charges the next day. Tajul Islam got up and said, ‘ATN Bangla and Ekushey TV investigative reports were cited as evidence. If we don’t get the copy of those how can we argue?’

The tribunal chairman said, ‘They don’t have to give it to you. The rules only require giving copies of the documents and it does not require them giving copies of the CD or DVD of the video recording. Sit down.’

Islam responded by saying, ‘My lord, it would be like keeping us in the dark. At least the transcript could be given in CD. If it is not in the Rules then the Rules should be amended requiring the prosecution to give copies of these video recordings to the defence for ends of justice. The prosecution must serve all materials on defence upon which they will rely.

The tribunal passed its order.

"Charge hearing of the prosecution is completed. An application for adjournment has been filed by the defence. It appears that the application has been signed by Mr Tanvir Ahmed Al Amin. It appears that he has got no power in this case.

Tanvir then got up and said, ‘Objection my lord, of course I have the power in this case. I can give 100 per cent guarantee. We have submitted the documents long ago in this court. ‘

‘It appears that no power of Mr Tanvir Ahmed Al Amin was available with the tribunal. But Mr Tanvir Ahmed Al Amin said that he has filed this in the court. His submission is accepted. The adjournment prayer is allowed as a last chance to 13/9/2011 for hearing charge matters of the defence.

The defence lawyer argued, ‘Why it would be the last chance?’

The tribunal chairman said, ‘Yes, it is the last chance. But if you face any problem and need time and ask for it, we will consider it. But, normally this is the last chance. ‘

Press Briefing by defence lawyer, Tajul Islam
"We filed petition praying for more time. We decided not to take part in the hearing and accordingly we did not participate in the hearing. The only two time I stood up and protested/objected was because the tribunal members and even the honourable chairman of the tribunal were asking [as the prosecution were presenting their case] the prosecution why they wrote something in a certain way in the formal charge and instead of that they should’ve written it in such and such way. They were saying to them that they should do this instead of that.

For example, Mr Chairman said to the prosecution, “You have put crimes against this person under ‘crimes against humanity’ and for the same crime done to another person you included that under ‘genocide’. You should’ve put that under ‘crimes against humanity’ rather than putting that as ‘genocide’.” Then I protested that whatever they did, however they did it -- if it was done in the wrong way it is a weakness of the prosecution and the accused/defence will enjoy the benefit of this. The tribunal can enquire about it. But they can’t suggest writing something in certain way. This “suggestion-making” and to correct the mistake or giving the prosecution to redeem their weaknesses is not the tribunal’s responsibility, the onus is not on them to correct the prosecution’s mistakes. The accused will be prejudiced if things go like this. So, I only attracted the tribunal’s attention to express my objection. There was another member of the tribunal who similarly asked the prosecution why they wrote “systematic attack” in the formal charge, why they included that phrasing, and told them to strike that off. I also protested at that time too. Whatever they have written they have to bear the responsibility for it. If they have written something wrong, if they have committed mistakes, the accused will get the benefit. But the tribunal can’t ever suggest them to write this instead of that. That was my objection.

Journo: There were 18 witnesses...What’s your position about them?

There were actually 38 witnesses. We were provided with the statements of 38 witness statements. You know that we couldn’t go through them during the vacation. It’s also not only about reading those documents; you have to keep that in mind that it is a special tribunal. This trial should ensure that the accused is informed about everything; his lawyers are getting his instructions and statements, according to which the lawyer will argue and present the case. Till now we haven’t been able to show the 38 witness statements to our client. There was only one working day. It was not possible to tell him all about it in one meeting. So we always said that we need time.

There’s another striking thing that happened today: the prosecution was saying that they have such and such witnesses for such and such cases, and there are also investigative reports from ATN Bangla and Ekushey TV to support their cases. We said that we haven’t received the copies of those television reports. They said that we will not be provided with video CD. I said if you don’t want to give us CDs that’s ok but at least give us the proceedings of what was said and claimed there in those reports. No fair trial and justice can be done if I can’t see, hear and don’t have rights to get the things that will be used to frame charges against me, the things that will be used as evidences against me. So we prayed to the tribunal to give us the copies for the sake of justice. They said the rules don’t mention that we should be provided with CDs. I said the rules were framed by the tribunal itself, so they can change the rules if necessary. For the sake of fair trial and justice the accused should be given these facilities – to inspect, scrutinise the charges, get legal help and have the copies – otherwise justice will not be delivered.

Journo: The tribunal said you were given time for the last time – what do you say about this?

We also protested against this too. Allowed time for the last time – what is that? It’s only today that any order was passed on our time-seeking application. Last time when they extended the time was based on the prosecution’s statement, not us. That day Mr Tipu said that we should be given time, and actually we saw that the prosecution was not even prepared themselves; rather they turned the liability on us and said that we could be allowed time. So it can’t be said the order was given in reply to our prayer. Today is the first time when there has been a written order on allowing more time. They said this is the last time they are allowing it. I protested saying that it is not appropriate to say that this is the last time as it is only the first time they are allowing it. Then the tribunal said there’s nothing called the last time in these courts and if we apply for time again, they’ll consider it and give us more time.

Journo: What happened with Mr Tanvir Ahmed Al Amin’s signature?

When we included Mr Tanvir in this case we submitted the forms regarding his power to represent in the open court. That gave him full authorisation to represent Mr Sayedee and the application also had my signature as I was the first one to represent him from the beginning. The application was submitted with both of our signatures. Somehow that probably went missing from the files and the judge said to Tanvir that he doesn’t have power to represent the accused. He was even passing an order saying that. We said that we have filed the documents giving him the power, if it would be wrong for the tribunal to say that we didn’t. He accepted our submission and said that he has the power. Probably at that moment that was missing, but we have submitted it. The document containing Mr Tanvir’s signature is probably missing and the judges thought that he doesn’t have the power. But he does.

Journo: Will you be presenting the case from now on?

I’m here and Mr Tanvir is here too. When we will prepare for the case, we will both prepare and any of us can present the case. It is not something definite.

Journo: Will the defence start arguments on 13 August?

13 August is the date fixed for placing our arguments. Obviously we are supposed to start on that day. If there is no exceptional problem we will be placing our arguments on that day.

Prosecution press briefing

"Today was the day fixed for the charge hearing on the case against Delwar Hossain Sayedee. Today our turn came first and the tribunal called us to present our case. I gave an introductory speech and my friend Syed Haider Ali then followed it with detailed statements. The next date for the defence to place their arguments is fixed on 13 August.

Mr Haider Ali started the charge hearing for this case on 24 August and he continued that today. On our proposed charged we stated the crimes and statements of the witnesses and the details of how the crimes took place. The tribunal heard us and our hearing is now finished and the next hearing date is 13 August when the defence will come up with their arguments.

Journo: What were the charges (what are the crimes) that you presented today?

We pressed a total of 33 charges and we presented them in detail. These charges include: Murder, genocide, arson, looting, rape, crimes against humanity etc.

Journo: What about the 18 witnesses and Deloar Hossain Sayedee forming Razakar force?

Yes, there were 18 witnesses who clearly described how Maolana Deloar Hossain Sayedee aka Delu aka Deliya formed the Razakar force and gave detail descriptions about it.

Journo: What are the documents from media that you submitted?

There were many reports, photos, videos, documents published in print and electronic media after 1971 and we presented those.

Comment
1. It is notable that five of the counts (2, 10, 11, 21, 29, 30) are supported by just one witness. It is difficult to see how one witness is going to be sufficient to allow any tribunal to convict a person for an offence that allegedly took place 40 years ago.
2. The witness statements are all understood to be pretty short - sometimes just one and a half pages, even when the witness is alleging numerous crimes alleged to be committed by Sayedee.
3. Many people are given as witnesess to multiple counts. Six witnesses give evidence in relation to five or more counts (2, 13, 19, 34, and 45). Witness no. 45 gives evidence in relation to 9 offences!
4. The strength of the witness statements are not known since they have not been made public. However, it is notable for example when statements were read out, it was clear that they were not actual eye-witnesses. So in count 2, in relation to the killing of Vagirothi, the only witness is his son, and he was five years old when the incident happened. It is difficult to see how the testimony of a five year old is going to be sufficient to substantiate the allegation.
5. It was rather odd, how the tribunal, out of the blue raised an issue about the lawyer Tanvir Al-Amin. He has many times argued before the court and the tribunal has never questioned him about whether he had proper authority to act on behalf of Sayedee. Anyway, it was positive that the tribunal backed down quickly on this.
6. Note that the application made by the defence at this hearing brings into questions certain elements of the decision by the tribunal to take congisance of the offences (see comment at end of 18 August hearing blog)

24 Aug 2011: Sayedee adjournment

Sayedee was present in court again.

The hearing started with the chairman asking Tajul Islam, the defence prosecutor, why the defence were again seeking an adjournment, and telling him that in any case there was an outstanding application that the tribunal has not yet ruled on.

He said that after the hearing today the court will next sit on 4 September when the defence will be able to present their argument.

Tajul Islam, the defence lawyer asked how the charge hearing could go on, if the defence was not prepared? They had only just received 38 additional witness statements and had not been able to seek instruction from the client.

The tribunal chairman again told the Islam that the defence would get their time and everything will go on according to the rules. ‘So, you should sit down, listen to their arguments and take notes.’

Mr. Islam replied that this also amounted to taking part in the proceedings. ‘Without knowing about the additional documents the Defence was not in a position to take part in the hearing,’ he said. He then said, ‘My lord, we want to humbly submit that the prosecution is deliberately trying to obstruct a fair trial. They have submitted illegible documents, which they are using as vital evidences such as statement of witnesses. They repeatedly asked for more and more time without citing any good reasons. I would say they did it on purpose. The prosecution impeded fair trial by taking time deliberately.’

The tribunal chairman replied, ‘Look Mr Tajul, I could say so many things now but I’m not going to. I would just ask you to sit down and listen to their argument. About the illegible documents, we passed the order saying that illegible documents will not be considered as evidence by the Tribunal. After this order how can there be any question about illegible documents? Nothing more is required. So, you sit down, take notes on what they submit and prepare yourself. But please don’t waste time by submitting adjournment petitions.

Islam said, 'My lord, we got the copy of witness statement only yesterday at 3pm. It is not possible to go through this overnight. We will be prejudiced if we take part in the charge hearing now. Without reading the documents thoroughly how can we take notes? Moreover there are illegible documents. You are asking us to do something that is impossible.

The tribunal chairman asked Islam to please sit down and let the prosecution place their arguments.

Islam then said that they could not take part in the hearing, and all the defence lawyers get up from seats and about to leave.

The Tribunal chairman said, ‘What’s going on? Please take your seats. Sit there, listen to their arguments and take notes.’

Islam responded, ‘My lord, my client doesn’t even know what the allegations are. There is no way that we can take part in the proceedings.’

The tribunal chairman said, ‘Mr Tajul, you have said too much. You say something inside the court, and outside you say something else. It’s the modern age, we get all the information, we read stuff on the internet, and we hear and know all the things you said.’ You have said more that what you needed to say. You have crossed your line.’

Islam responded by saying that what he says outside the court is the same as what he says inside. ‘I never say anything other than that. I can’t do if anything if the newspaper misquotes me. Furthermore, I didn’t even have time to look at the newspaper these days. But I never say something else outside the court that doesn’t happen inside the court.’

‘My lord, the prosecution only supplied us the documents yesterday that they were supposed to submit on 19 July 2011. I would say that they are being indulged as they are getting time whenever they want and they are getting away with all the anomalies. Where is the justice? How can it be possible for us to prepare for the charge hearing overnight where there are 68 witness’ statements to read through? I haven’t heard any cases like this where the defence has to prepare and take part in the charge hearing the next day after getting statement of witnesses. The prosecution, by not submitting those witness statements earlier, has violated court orders, the act and the rules. But they are getting away with it pretty easily.'

The chairman said, ‘Look, we are going to take tough stance with the prosecution. But please sit down and take part. The charge hearing has started yesterday, you were there too. You can submit your petition on 04 September 2011.’

Islam said, ‘My lord, during Eid vacation it is not possible for us to go through all those documents. I’m not even sure we can get back to Dhaka on 4 September. You have to consider that although we are lawyers, at the same time we are human beings.’

The chairman again asked Islam to please sit down and take notes.

Islam said, ‘My lord we have to say we can’t take part in the charge hearing like this.’

The tribunal chairman asked the Chief prosecutor whether he was ready, and was told that he was.

The chairman then said, ‘First of all, I also caution your side for the mistake that you made. Your side is making mistakes over and over again. Be careful about these things.’

The prosecutor said that they would be careful so that this doesn’t happen again. ‘It was an inadvertent mistake’

The chairman said, ‘Allah has bestowed us with a great responsibility and we want carry out this responsibility and do it fairly. We are for both sides. But it is us who are being questioned for the mistakes your side is making.’

The prosecutor said, ‘My lord, this will not happen again.’ He then asked Haider Ali to start. There was a short conversation between the two and the chief prosecutor then said, ‘We also have no objection if you consider the adjournment petition, if this is acceptable to your lordship.’

The tribunal then passed the order.

‘

This is an application for adjournment filed by the defence. Mr Tajul Islam, learned counsel, appearing for the accused petitioner, submitted that they have received part of the witness statements from the prosecution just yesterday. As such they couldn’t peruse the documents in this short time. He also submitted that the defence is not prepared to take part in the hearing. Learned chief prosecutor, appearing for the prosecution, does not oppose this prayer for adjournment of the charge hearing. Considering their submission we adjourn the hearing until 04/09/2011. The court will sit for further hearing of charges on the day.

Defence press briefing with Tajul Islam
Journo: (Jokingly) Remember to say exactly what you said inside the courtroom.
Tajul Islam: Now I’m sort of nervous to say anything in front you! You all know that the charge hearing was adjourned yesterday. It was found by the court yesterday that the prosecution did not submit part of some documents. The Tribunal ordered prosecution to submit the rest of the documents yesterday. We received those copies yesterday at 3pm from the prosecution. Obviously, we couldn’t prepare ourselves on this. The documents consist of almost 70 pages and there is statement of 38 new witnesses. The earlier copy that we received had statements from 30 witnesses and we received extra 38 witness statement yesterday. Naturally it was impossible for us to read those extra 38 statements meticulously. So, we prayed for further time today. But the Tribunal, without passing any order on our petition, told us to sit down there and listen to prosecution’s argument. We argued that if prosecution is allowed to go on that means that the charge hearing is continuing. If one side is allowed to place their argument having another side completely unprepared that cannot be called justice. In spite of that the Tribunal asked the prosecution to go on. At this stage, the chief prosecutor said if the tribunal allows the time-extension petition they won’t have any objection against it. After his statement, the tribunal said that they are allowing our petition for more time and the next date for charge hearing is fixed on 4 September 2011.

Journo: Is this enough for you? Would you take part in the hearing that day?

Tajul – Of course you all understand that we just received the documents. The Eid vacation will start very soon. We have to come back and sit for the charge hearing just one day after the vacation will have ended. In light of the present socio-economic scenario in Bangladesh, all of us who reside in Dhaka go to our village or home town to celebrate Eid with our parents, family and relatives. You all also know the condition of the highways and roads very well. So you can tell me well about how realistic it is or is not for us to get back on the 4th September in Dhaka. Under the prevailing circumstances I wouldn’t be surprised if we can’t even reach Dhaka on the day. But yet the Tribunal set the date and of course, the order of the Tribunal is to be complied with. If we face any problem, we will come and explain that to the Tribunal. We are not sure if we can even be physically present and say something. Let us see what happens, time will say.

Journo: If you can come, then...

Tajul – It depends on if we can fully prepare in the meantime. If we can’t, obviously we will ask for more time that day.

Journo: Tell us about the documents.

Tajul – The prosecution provided us the first set of documents on 27 July 2011 that they were supposed to submit on 19 July 2011. In those documents 97 pages were illegible. We applied for new set of documents, and when we got those, 72 pages were still unreadable. Finally, on 16 August we got the first chance to show those documents to our client. Then the charge hearing started. We said it time and again that if we are not given adequate time, it is impossible for the defence to prepare for such a case like this. It will be impossible for us to ensure justice for the client under these circumstances. For this reason, we appealed for reasonable time to the court, especially for the documents supplied to us yesterday containing 38 new witness statements. It is not possible to finish reading these documents and prepare for argument overnight. This trial is not something that has to be rushed. So, we said if this reasonable time is not allowed, we are unable to take part in the hearing and we will not participate. We said all these things to the court. You know, we are not supercomputers that we can go beyond our human limitation and magically prepare the arguments only after getting them on yesterday at 3pm. So, we will not be able to participate in the hearing if we don’t get at least the logical time that is needed as a human.

Journo: Are you apprehensive about getting justice?

Tajul – It is hard to comment on this now right away. If we don’t get what is reasonable you will see what will understandably follow. But at this moment it is hard to comment on this.

23 Aug 2011: Sayedee bail

Sayedee was again present at this hearing, which had been set to deal with the 18 August adjourned application relating to charge framing. Instead, the court first dealt with a bail application. See comments at end.

Bail Application
He said that on 14th July 2011 the prosecution raised the following objections against the bail application of the accused: (i) the accused is an influential character and likely to interfere and influence witnesses and hamper the trial process; (ii) there is a prima facie case of allegations of Crime against Humanity and genocide against the accused; and (iii) considering the brutality of 1971 there was no ground to release the accused on bail.

He argued that by order dated 14 July 2011, the tribunal denied bail to the accused holding that cognizance of offence under section 3(2) of the International Crimes Tribunal Act 1973 had been taken against the accused and that this was a case where detention of 8 or 9 months could not be termed as a long detention in either Bangladesh's national law or international law.

That rule 34(3) now provides that “At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfillment of some conditions as imposed by it, and in the interest of justice, may modify any of such conditions on its own motion or on the prayer of either party. In case of violation of any such conditions the accused may be taken into custody cancelling his bail”.

He then set out the reasons why bail should be given

First, the accused is unlikely to tamper with witnesses or evidence or interfere with trial proceedings. He said that the prosecution has already admitted that the accused is not named in the 6 General Diaries filed in Pirojpur Sadar and Zianagar (Indurkani) Police Stations alleging that witness intimidation had occurred.

He said that on 31 May 2011, the full investigation report had been handed to the prosecution and that under Rule 11, this indicates the completion of all investigations: “After completion of investigation, the Investigation Officer shall submit an Investigation Report together with all the documents, papers and the evidence collected during investigation of offence(s) as specified in the Act committed by a person(s) before the Chief Prosecutor (emphasis added)”.

He said that under the newly inserted Chapter VIA of the Rules of Procedure, a number of measures can be ordered by the tribunal to ensure witness protection and prevent witness intimidation or interference. He added that the accused’s residence is in Dhaka and that the alleged crime bases concern the Pirojpur District nearly 300km away in the south-western region of Bangladesh.

He also argued that:
- he is a religious scholar and a man of good character. - the accused is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from the tribunal. - he is also willing to comply with a residence condition to reside at his address at 914, Shahidbagh, Dhaka 1217 whereby his presence can be regularly checked and monitored. He is willing to report to this Tribunal on an agreed regular basis. - the accused is willing to undertake that he will not travel to any crime-base areas without prior permission from the tribunal. He is also willing to undertake not to contact any prosecution witnesses or to interfere with the trial proceedings.

In conclusion on this point he said that here is a lack of evidence connecting the accused to any claims of witness intimidation as well as the imposition of several factors safeguarding the trial process and witnesses. This includes the:
i. conclusion of the investigation report;
ii. the newly inserted witness protections provisions; and
iii. the bail conditions volunteered by the accused as an additional guarantee.
And therefore the tribunal should recognise that it is unlikely that the accused will tamper with witnesses or evidence or interfere with trial proceedings.

2. He argued that bail can be granted to an individual even when he is accused of serious crimes. He said that on 14 July 2011 the prosecution opposed bail on the basis that there was a prima facie case establishing allegations of crimes against humanity and genocide against the accused. The prosecution also submitted that there was allegation of killing more than 50 persons against the accused and considering brutality committed in 1971 the application for bail of the Accused should be refused.

He argued that the jurisdiction of the tribunal under section 3 (2) of the International Crimes (Tribunal) Act 1973 as amended 2009 solely concerns crimes of a serious and grave nature including crimes against humanity, genocide and war crimes and that as under Rule 9 (5) and 34 (3) of the Rules of Procedure, the tribunal provides for two manners in which bail can be granted both throughout the investigation and proceedings, it isy submitted that the tribunal envisages that bail can be granted regardless of the nature of allegations formed.

He said, that other international tribunals all have jurisdiction over crime against humanity and genocide and further all of the tribunals provide for the right to provisional release, and in the case of Prosecutor v Hadizihasanovic at the ICTY, it was held that the rule regarding provisional release/bail must be interpreted in light of the ICCPR and that in this regard, no distinction should be made between domestic criminal and international criminal proceedings.

He referred to the case of Prosecutor v Stanisic, where he said both the Trial Chamber and Appeals Chamber at the ICTY held that: “the gravity of charges cannot by itself serve to justify long periods of detention on remand” and that the ICTY has on a number of occasions provided provisional release to accused persons formally charged with crime against humanity and genocide.

He finally submitted that the nature of any potential charges to be brought against the accused does not prevent the Tribunal from granting bail.

3. He argued that bail is a right and not a privilege - that the amended Rules of Procedure provide for the right to be presumed innocent under Rule 43 (2) and the presumption of innocence is also enshrined in Article 14 (2) ICCPR: “Everyone charged with a criminal offence shall have the right to be presumed innocent until guilty according to law”.

He argued that following this guarantee under Article 14 (2) ICCPR, Article 9 (3) ICCPR provides that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”

He submitted that the presumption of innocence enshrined in Rule 43 (2) of 2010 Rules and Article 14 (2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under domestic and international law. Following Rules, 9(5), 33 and 34(3) of the 2010 Rules (as amended on 28 June 2011) and Article 9 (3) of the ICCPR, this right arises at any stage of judicial proceedings and in particular the right to bail is fundamentally upheld during pre-trial proceedings.

He finally argued on this point that that under Article 9 (1) ICCPR: ‘No one shall be subjected to arbitrary arrest or detention". that the Human Rights Committee’s constant jurisprudence has defined the notion of “arbitrariness” as being broadly interpreted and “to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime."

As a result, it submitted, the prosecution erred in its opposition to bail on the grounds that victims suffered atrocities in 1971. This illustrates that bail is being refused as a point of retribution and not because it is both reasonable and necessary as required under the ICCPR. An attempt to punish the accused for events suffered in 1971 before any finding of guilt is contrary to the accused right to be presumed innocence.

4. He argued that the accused should be granted bail to seek full-time medical attention as he suffers from a number of ailments including diabetes, cardiac disease and chronic arthritis in the neck, upper limbs, waist and knees. Considering the acute health conditions of the accused on 26th May 2011 the Jail Authority had to admit him in Ibrahim Cardiac Hospital and Research Institute (‘ICHRI’), and that although on 11th June 2011 he was taken back to the Dhaka Central Jail, t accused is still very sick and is of very old age requiring full-time treatment in specialised medical hospital and care of his family members.

He finally set out the conditions that the defence proposed could be imposed upon Sayedee if the tribunal were to give him bail:
i. surrenders his passport before this tribunal;
ii. does not apply for any travel documents without the prior permission from the tribunal;
iii. resides at 914, Shahidbagh, Dhaka - 1217;
iv. reports to this tribunal on an agreed regular basis;
v. does not travel to any crime-base areas without prior permission from the tribunal;
vi. does not contact any of the prosecution witnesses; and
vii. does not interfere with any part of the trial proceedings.

He added that a family friend of the accused would be willing to grant surety.

The chief prosecutor Golam Arif (Tipu) responded on behalf of the prosecution. He said, these points for bail petition are presented by the defence over and over again. He said that old age is a common problem for this trial, as the crimes happened 40 years ago and the accused are all over 60 or 65.

He argued that the accused should not be granted bail because he can interfere with fair trial and it will be an impediment for the trial process. He also argued that the offences are also so grave and the trial is of such magnitude that the accused can not be granted bail.

Tajul Islam responded by saying that. ‘Today, prosecution’s only objection is that he will interfere with the trial. We would ask my lordship to at least grant the accused bail once for now. He will surrender his passport to the Tribunal so there is no chance of absconding. If, after granted bail, prosecution says it once that he impeded the trial just take him into custody again. We will have no problem with that. But we pray for the bail because the accused has no intention to interfere with the trial nor will he abscond.'

The prosecution responded by saying that Sayedee is a man of tremendous influence and it is likely that he will interfere with the trial. He also said that the tribunal has already taken cognizance against the accused petition and today is fixed for charge hearing. So the bail prayer may be rejected.

The tribunal then passed its order

"This is an application for bail against the accused petitioner Delawar Hossain Sayedee. Mr Tanvir Ahmed Al Amin, learned counsel, appearing for the accused petitioner, submits that the accused petitioner has been detained for a long time without trial and there is no chance of tampering with evidence and interfering with trial if he is granted bail by this tribunal. "Learned counsel further submits that there is no chance of interference as the investigation process is now over and we are waiting for the charge hearing to take place. If the bail petition is granted the accused is ready to comply with any condition imposed by the Tribunal. The learned counsel also submits that the accused petitioner is innocent until proven guilty. So the accused petitioner may be granted bail on that ground. The prosecution opposed the bail prayer by submitting that the accused petitioner is a very influential person in the society and have influence over his locality. If such influential person is granted bail by the Tribunal there is a chance of tampering with the witnesses and there is a chance of impeding the trial. Learned prosecutor also submitted that the defence is presenting the same grounds and the Tribunal has rejected those before and new grounds have to be considered. As such the bail prayer should be rejected. "We have considered all the submission from the defence and the prosecution and earlier we also perused the formal charge and the applications forwarded by both parties. The tribunal has taken cognizance of the offence and the charge hearing will now take place. The submissions made by the learned counsel were previously made before the tribunal. So we find no ground to reconsider the bail petition. Therefore the bail application filed the defence is thus rejected."

Adjournment petition and illegible documents.
The tribunal chairman told Tajul Islam, the defence lawyer, that, ‘we considered the prayer regarding illegible documents and passed an order last time that those will not be admissible as evidence in court.’

Tajul said, ‘My lord before proceeding I would like to share a joke with everyone. “The king asked his minister, “Why did the cannon not fire?” The minister said, “There are 101 reasons and the first one is that the gunpowder was wet. The king said, “There is no need to explain the other 100 reasons.” My lord, we didn’t have enough time to prepare for the charge hearing, we couldn’t meet the client and take his instruction. As we are not ready, we don’t see any point in going for the next step, just like the failed cannon and gunpowder story.

He was about to discuss the issue of the illegible documents, when the tribunal chairman said, ‘We already said that those will not be admissible.’ Islam said that, ‘in the Tribunal’s order there is a provision that new evidence can be submitted. These 72 pages that are illegible, was relied upon by the prosecution. The formal charge was a reflection of all those documents. If they couldn’t even read them themselves how they could consider this for the formal charge.’

The tribunal chairman said, ‘But we said that they will not be considered. We cannot instruct anyone to submit or not submit evidences. It is up to them and we decided that we will not consider the illegible ones.’

Islam said, ‘My lord, there could be some documents of our interest in those illegible documents. We might find something that could go against their arguments.

He added that the defence had still not received the copy of the 10 August hearing.

He said, the tribunal took cognizance of the offence on 14 July 2011. The prosecution took 42 days to submit the formal charge. But we are not even getting one tenth of the time that they got. As a state party of ICCPR we have the obligation to follow the international rules which require proper access to documents. 'We humbly submit that the prosecution can benefit from the illegible documents. The prosecution also did submit that it is not their duty to supply all the documents. ICT rules of procedure 18 (4) provide that ‘the Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.’

So, it is a duty of the prosecution under rule 18 (4) that submit legible copies of document for defence preparation, he said.

Islam then discussed the issue of privileged communication. The Bengal Jail court rule 683 and 687 provides that the accused is entitled to have privileged communication with suitable room where the lawyer and the client can have private and confidential meeting. 'We only could consult with our client on one day, which was not privileged at all. 22 August 2011 was a holiday and we didn’t receive the order copy which requires the jail authority to give privileged communication.'

The tribunal chairman said, ‘We know that you didn’t receive the order copy. You will get it soon’.

Islam went onto say that ‘our submission is that there is a violation of article 14 (3) (b) of ICCPR rules. We should be allowed more time for preparation.

'Finally we want to submit', Islam said, 'that if we can’t take instructions from our client we can place no arguments at all. This trial is a very complex one and I’m still finding it hard to understand so many aspects of it. Such as, I still don’t understand what crimes against humanity is/ how it is defined. We also submit that Eid vacation is coming and it will be hard for us to go through the documents. So we pray for adjournment at least till Eid vacation.' The tribunal chairman asked the prosecution whether they were ready?

One prosecutor said, ‘Yes, my lord. What we want to say is that we are hearing the same arguments over and over again. Maulana Deloar Hossain Sayedee is a great philosopher and a great orator. The trial should start quickly other wise he can influence the trial. The law gives them three weeks and they got their three weeks’.

Islam said ‘My lord, the prosecution should see their own face in the mirror. There had been numerous times that they asked for more time, over and over again. They took 42 days to submit the formal charge. I humbly submit that we will be prejudiced if this goes on, but the prosecution will not be prejudiced. Furthermore, one minister was reported in the media saying that the charge hearing will surely start from August. Public will think that there is a connection between this remark and the rush to start the charge hearing.'

The tribunal chairman said, 'Look, ministers say so many things. If the charge hearing doesn’t take place in August, in September they are going to say that the charge hearing will take place in September surely. There is no escaping from those.'

Islam said, ‘But we feel that such remarks should be cautioned by the Tribunal. The tribunal has criticised earlier comments that it didn’t like. If the tribunal can take judicial notice of what [Toby Cadman] said then why it cannot take such notice for the comments of the Ministers on the trial process.’ It should be the same case. There is no rush to start the charge hearing my lord. Justice hurried is justice buried.

'Maulana Delwar Hossain Sayedee is a good orator, of course, but for good cause. He used his oratory power all his life to call people toward the good path, path of religion. He never used his power to influence people in the wrong direction. So, how his oratory power is now a threat? It seems that my client is being prejudiced because he is a good orator. Since when having a good quality became a thorn for someone? He always led people to good path with his power, why would he do otherwise now?’ Islam said

The tribunal chairman then told the prosecutor that he may start his argument and we will pass the order for the adjournment petition later.

Tajul asked how that was possible? ‘If we don’t get the reasonable time we can’t take part in the hearing.’

The tribunal chairman asked him to sit down. ‘We will pass the order later,’ he said. The chief prosecutor started the application for charge hearing. ‘The papers that we have submitted today contain material for your lordship to consider. Based on our formal charge your lordship has taken cognizance of the offence on 14 July 2011. Along with the formal charge we have submitted the investigation report containing witness statements, newspaper cuttings and other documents. The materials justify the framing of charges against Maolana Delowar Hossain Sayedee." After a few minutes he then called Mr Haider Ali to proceed with the charge hearing.

Haider Ali then got and spoke. He said that ‘Pirojpur district in Barisal Division is one of the places where some of the atrocious incidents took place that happened between 25 March 1971 and 16 December 1971. They are all stated in the formal charge. An Investigation agency was formed according to ICT act section 8, and the investigation officials thus appointed carried out the investigation and prepared the investigation report. The official investigation started on 21.07.2010.’

The tribunal chairman interrupted him and said, ‘You should better go straight to your argument rather than citing history. No need for all the explanations.’

The prosecution said that he thought there should be at least a little bit of explanation.

‘On 23 June 1756,’ he continued’ ‘the British rule had started in the subcontinent and after almost 200 years of colonisation Pakistan and India were born in 1947. Pakistan was divided in two states East and West Pakistan, which were 1200 km apart (2400 km in seaway). There were also difference in language and culture. West Pakistan started hitting at East’s culture over and over again. They deprived East of equal rights and economic development. They also came down on the language of the then East Pakistan, Bangla, which ended up in Language movement in 1952. In 1970 6-point movement happened and East Pakistan won the election and was on its way to form the government. But West Pakistan was not willing to do so. Then the West Pakistan force attacked the East on 25 March 1971. It was not a sudden attack, the build up was going on since 1948. The incidents that took place in Pirojpur were just a part of the whole massacre of the country. '

'In 1971, almost 98-99 per cent of Bangladeshis were united and fought against the Pakistani force. But there were some others who joined hands with the Pakistani force and in collaboration were involved in all crimes such as murder, rape, looting, arson etc. They formed groups such as ShantiBahini, Razakar, Al Badr, Al Shams to carry out their operations. How these groups were formed is stated in the formal charge.

'The accused was also engaged in murder, rape and loot during that time and the investigation officers went to Pirojpur and took statement from the tortured. They also found one mass grave. As Pirojpur is a coastal area and has a lot of rivers, most of the dead bodies were thrown away in the river. There is a detailed description in the 11-14 volume.

'There are also the copies of statements from the witnesses in front of you.

'These incidents happened 40 years ago. The defence is saying that it is a problem for them, but in the meantime it is a big problem faced by the prosecution too. We have also seized some documents but it is not presented here as it is very delicate and may get destroyed if moved to frequently. Now we are going to go through the statement of the witnesses. We also submitted a proposed copy of the charge.

The accused is Maulana Delwar Hossain Sayedee aka Delu aka Deliya born on 1/2/1940. Permanent address Pirojpur and present address Shahidbag, Dhaka.

In his educational certificate his name is stated as Abu Nayeem Md Delwar Hossain Sayedee. We came to know that he does not have the educational qualification to put the title “Allama” that he uses before his name. Sharsheena Madrasa also told us that he does not have the educational qualification to write “Allama”.'

He then started to go through the charges.

Charge 1 he said involved the allegation that turing the period 3 May 2011 and 16 December 1971 he was involved in murder, rape and forcefully converting Hindus to Muslims. He initiated the Razakar group in his area and set up torture camps. This was all part of the planned Pakistani annihilation of Bangladeshis who were the majority in whole Pakistan.

He mentioned two witness statements in support of this Abdul Latif (witness no 18) and Mokhles Moshari (witness no 15). Their statement says he helped establish the Razakar camps and murdered people there. He was also involved in the killing of a girl who helped the Muktibahini (Liberation force).

He then moved onto count 2, and referred to witness No. 45 in volume 2 of the witness statements.

The tribunal chairman then said that ‘We can’t find the witness statement copy? Where is it?’

The prosecutor said, ‘You will find it in Part 2, there is a second part of the witness statements.’

The tribunal informed the prosecution they only had one volume of witnesses and the defence was also served with one volume. If there was another volume then it should be submitted first to the tribunal and the defence.

After searching through the tribunal documents, the chairman said that they couldn’t seem to find it.

The prosecution then found the copies, ‘We have found three copies. Here they are my lord.’

The tribunal says, ‘No, we cannot let you continue, because the rule says you have to submit four copies – three for the judges and one for the defence.‘

The tribunal passed the following order:

'Application praying for reasonable adjournment and submission of legible documents was taken up for hearing. At the outset, Mr Tajul Islam, learned counsel, appearing for the accused petitioner pressed arguments regarding illegible documents. The Tribunal has already passed the last order regarding illegible documents and Mr Tajul also did not deny that. Regarding the petition for reasonable adjournment Mr Tajul strongly argued on the factual point that they could not prepare themselves for the charge hearing. The prosecution opposed the prayer for adjournment saying that they were ready. However, we, not passing order regarding the adjournment, asked the prosecution to start the hearing of charges. During the hearing, it was revealed that there are some anomalies in service of copies of documents regarding some statement of witnesses to the tribunal and the accused. The prosecution is thus directed to submit the missing copies regarding statement of witnesses in this tribunal and to the defence today. Let the hearing of the charge matter be adjourned till tomorrow.'

Press briefing by defence given by Tajul Islam
Tajul - You all know today was the date fixed for hearing of charges against Maulana Sayedee. We filed a petition asking for more time. We had few key points in our petition for adjournment. We didn’t receive legible copy of all the documents that we were supposed to get. We didn’t get the opportunity to consult with our client because we didn’t have the certified copy of the Tribunal order and without that the jail authority will not let us have the privileged communication. So we couldn’t take the instruction from the client. We also submitted that we didn’t have the opportunity to adequately prepare for such special case and we couldn’t take instructions from the client. We didn’t get the documents in time and whatever was provided after that had illegible documents. So we prayed for a reasonable time and wanted the hearing to start after Eid vacation. The Tribunal, after hearing our petition, didn’t even pass any order on that and asked the prosecution to start the charge hearing. They started the hearing and then it was found out that they didn’t submit some documents to the court and also to us, which they were supposed to give us on 19 July 2011 after the Tribunal passed the order on 14 July; we received the documents on 27 July 2011. So, you can easily see that they didn’t even submit all the documents till today that they were supposed to provide on 19 July 2011. Time and again we are asking for more time and the court is refusing. But we haven’t got all the documents yet. In these circumstances it is impossible for us to continue with the hearing of this complex trial as a defence lawyer. After seeing all these, the tribunal fixed tomorrow for the hearing again, I don’t know why. Because we haven’t got the document yet, whereas the tribunal also said that for preparation we will get at least three weeks after getting the documents. Probably prosecution will give us the documents today or tomorrow. Let’s see what order the tribunal gives tomorrow. We also asked why there is such a rush to start the hearing so quickly while we didn’t get the documents, we didn’t have privileged communication and we couldn’t consult the client. Why is there a need to quickly frame the charge and forcing it upon us? There is no need to haste as the client is in custody already. We also reminded the court that the law minister said that the charge hearing of Maolana Sayedee’s case will start within August. When the tribunal gives us this scanty amount of time, and when they don’t want to give orders on our adjournment petition, very reasonably there would be doubt in public’s mind that probably this court is following the dictation of the minister. So, we think that public confidence will take a hit and there would be doubts about this Tribunal. The Tribunal said that they are not taking minister’s remarks in consideration. I said if the Tribunal can be so critical about what Mr Cadman said in the press conference why won’t they take the minister’s remark into consideration or be critical about it. After saying all these, they still proceeded with the hearing but we said we will not take part in the charge hearing under the circumstances. Now the hearing is adjourned till tomorrow only.

Journo: There was another argument from your side that the allegations against Sayedee are new...

D – Yes, before 2008 there were no allegations against him. There was no question against him raised by any newspaper or in any history books that he was involved in those crimes happened 40 years ago. But when he became active in politics, when he is about to contribute greatly in politics and when he became a threat for his political rivals then recently just to harass him these allegations were raised. So, we said he is a victim of political vendetta. There is no proof that he was involved in all these war crimes, millions of inhabitants of Pirojpur will testify that. What happened against him was the greatest lying of the century. We have said this before and saying it today. We said that it is possible to prove him innocent if there is a fair trial. Journo: Will you take part in tomorrow’s hearing?

D – If we are not granted reasonable time we can not take part in the hearing. We might come tomorrow but we don’t even have enough materials to take preparations. Prosecution hasn’t still provided us the documents, so there is no question of being totally prepared by tomorrow.

Journo: What happened to the bail petition?

D – The bail petition was rejected for the sixth time today. The prosecution couldn’t answer to any of our arguments, so to speak. The Tribunal also didn’t mention that the Prosecution couldn’t oppose any of our grounds/arguments, they only said similar prayers were rejected before and there is nothing new. Our stance here is that there is new ground created everyday. My client is in custody one more day today than yesterday. As time goes by, new grounds for bail petition will be created. It’s been so long that he is detained, so we can always seek bail.

Prosecution press briefing
"Today was the day fixed for hearing of framing of charges against Maulana Delwar Hossain Sayedee. The defence prayed for more time and petitioned for an adjournment. The Tribunal said they want to continue with the hearing as the prosecution is ready. During the charge hearing we started to read the statement of some witnesses. Then it was found that there are little anomalies with the documents. The list of witnesses was a bit incorrect. One of the copies of statements was not there. We found three copies in our files. But the Tribunal said we have to provide four – three to the judges and one to the defence. As we had three copies, the Tribunal adjourned the hearing till tomorrow. Journo: Do you think your side was not adequately prepared?

P – This didn’t happen because of inadequate preparation. Some documents were missing only.

Comment
1. It is difficult to see what can be the justification for continue to keep Sayedee any longer in detention - other than for political considerations, which of course is not what the court is supposed to be about. The tribunal gave no substantive justification for denying bail and did not engage with ANY of the arguments made by the defence. It is really quite something how the tribunal does not feel it needs to engage with any of the defence's arguments. There is no evidence that he will flee, and as the defence said, if there remains some kind of concern about interference with witnesses, though it appears rather difficult to see how this could happen under the conditions proposed by the defence, why not give him bail and see whether the risks claimed by the prosecution arise.

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.

Comments
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.