This hearing continues on from 25 September with the prosecutor, Haider Ali, setting out why the tribunal should charge-frame the accused, Delwar Hossain Sayedee.
Before the prosecutor started, the defence team asked whether Sayedee could use the toilet upstairs. The chairman said that the upstairs toilet was not available as belonged to a different organisation. The defence team also noted that the police officer was not allowing the defence team to speak to the accused during the hearing, and the chairman said that he would deal with this.
The tribunal chairman then asked whether the reporter of Daily Manobjamin was present in court. He said that that the paper had reported that ‘the prosecution has agreed to the points raised by the defence’. This type of reporting should not be allowed, he said.
Proscutor application in favour of charge-framing, continues
Ali started by criticising the defence team for failing to quote Article 15(2) of the International Convention on Civil and Political Rights in its application, claiming that they were 'not honest'. The chairman asked Ali not to use these words but that they made an incorrect citation.
Ali referred to article 61 of the Rome Statute and claimed that it was in full conformity with section 16(1) of the 1973 Act and rule 35 of the rules of procedure and there was nothing inconsistent between Bangladesh law and the Rome statute.
He read out from the heading of the discharge application and said that nowhere does it say that Sayedee was innocent of the crimes.
In relation to the issue of the accused's knowledge, he said that the accused should not be discharged for any failure to mention the requisite knowledge in the charge, saying that this could be clarified or corrected at the time of framing charge.
The also argued that if there was any defect regarding classification of the offences or if the charges remain unspecified then this could be corrected at the time of framing charge by the tribunal, and that these objections cannot be considered as grounds for discharge.
He argued that the prosecution was working in full conformity with the international instruments.
The chairman stated that the defence lawyers claim was that the definitions of crimes are inadequate and that no trial can proceed on unspecified or vague offences. He asked what was the defence's reply to that?
Ali again said that there was no contradiction between the international laws as referred to by the defence and our domestic law.
He then read out Rule 35 of the Rules of Procedure and section 16 of the Act and said that the prosecution had already submitted formal charge, investigation report, supporting documents and witness statements, and that the Tribunal shall frame the charge on the basis of these papers and documents.
He said that the prosecution has specified time, date and places of occurrences in the formal charge and filed sketch maps of the places of occurrences and that everything is clear.
Judge Jahir Ahmed then said that the defence had raised the point that though some details are specified there is much that is not specified in the formal charge, 'For example he says that you have alleged that the accused destroyed another 25 houses, but you do not identify them.'
Ali said that many allegations are specified, but we are unable to find out specific information on some allegations - and that 'these will be given by witnesses in the dock.' He said that this information was not necessary to frame charges. There is no legal provision that states that due to these defects the accused should be discharged. The question is, he said, 'is which offences should be charge framed. The accused can only be discharged if there is no evidence that discloses any offence.'
Ali again said that no where in the discharge application does the accuse claim that he is innocent. The chairman responded by saying that there is no need at this stage for the accused to say whether he is innocent or not.
He said that the place, district, and village was specifically mentioned for all counts.
Ali argued that if the accused was innocent he should have said that in the discharge petition. The chairman said that he would need to do that after any charge is framed.
Ali then said that in some counts there are no eye witnesses, pointing out the to count two relating to the killing of Vagiroghi. He described how Vagirothi was brutally killed, and that this was reported in 1972 and the newspaper cutting is submitted in the prosecution document. He said that his son is a hearsay witness who is saying that the accused is involved with the killing. In trial, he argued that the prosecution, would show how and when the accused did this. The defence has not denied that the incident had taken place.
Ali then discussed section 4 of the 1973 Act about command/responsibility. He said that there were witnesses, other evidence substantiated by other circumstances.
'Was the accused involved in the crime or did he contribute to the offence? Was the offence done by his troops under him? The evidence we have is sufficient.
He said that the investigation officer had recorded evidence with the accused under section 8 of the Act and during the questioning in the safe house this matter was clarified with the accused and that statement had also been placed with the lordships.
The prosecution, he said, had substantiated the offence by statements of the witness, documents, evidences and sketch maps and that unless there is a trial where evidence is taken this cannot be proved.
A tribunal member then asked Ali that although the offence may have been disclosed in the formal charge, how can he link the accused with the offence.
Ali responded by saying that that will be clear from the prosecution witness statements. He said that there may be vagueness on dates and time, but the accused cannot be discharged for that. Sufficient materials are before the court to frame charge, he said. 'Every link is there' he argued.'Without a trial, without looking at the evidence, the tribunal cant make a decision.'
Ali then comments on a number of the legal authorities that the defence had mentioned.
- in relation to one concerning the applicability of international law, he said that this was decided in the context of a company matter and as such not relevant in the present case. He said that when the domestic law was clear and it conflicted with international law, the domestic law should be applied. The tribunal asked, 'You submission is that the offences are clear, so you do not need to go outside the law.'
- in another case he said was made in the context of a child execution case and does not apply in the present case.
Ali said that article 15(1) and (2) of the ICCPR was in fact helping the prosecution.
The chairman then asked Ali whether he wanted to say that if there is any difference between domestic and international law then the court is bound to follow the domestic law?
Ali said that the court need not look at other laws if the domestic law is clear.
Chairman then asked what should happen if there was any difference in the laws, should they follow the covenant which is signed by the government? He then said that a treaty is only signed by the relevant ministry - it is never passed by the parliament. 'So we are not bound by the decision of any ministry as they are not the peoples’ representative. We must follow the law passed by the parliament as this comes from the representative of people.' Ali said that he agreed and the case law mentioned by the defence lawyers also made this point.
Justice Jahir then asked whether there had to be an 'international armed conflict’ in order to prove the offence of Crime against Humanity? Ali said that he did not want to give any opinion on that. Jahir then said that that it should not be required since it is not part of domestic law.
Ali then said that he agreed that there was no such requirement. He said that section 3(2)(a) of the act defines crimes against humanity, that it is an independent section and need not be explained by any other law. 'The offences can be defined independently,' Ali said.
The chairman then asked whether all the offences in the act were independent provisions.
Ali said that these were all independent provisions and need not be explained with reference to any international law.
Jahir said that the offences are all the same, 'The only difference is in terminology. Here we say ‘Charge’ and they call it ‘Indictment’ like we say ‘football’ and in USA it is called ‘Soccer’.'
Tajul Islam argued that the points which the defence have raised must be dealt with at this point in the proceedings. 'We have raised fundamental questions about law and fact. They have to be dealt with now,' he said. 'They demand clarification. There needs to be very clear definition of the law and fact. This is not here at the moment. We are at a very important stage in proceedings. If not frame charge properly then trial will be vitiated. If charges not framed then the accused should be discharged.'
The chairman said that according to the prosecution this is not the time for these points to be dealt with
Islam responded by asking how can the trial proceed if the charge is unspecified. The prosecution cannot fill up the gaps during trial. 'Is there any scope in our law?' he asked. 'Charge must be framed properly.' He said that no trial can take place unless law and facts are clear and specified.
He said that there was a factual vagueness which has not been addressed by the Prosecutor. In count 2, involving the killing of Vagirothi, Islam said that this is a brutal incident. 'But the prosecution did not specify how the accused was involved.' he said.'The lordships have raised this question very strongly already. What is the relationship?'
He argued that it was also not clear what is the mode of liability alleged against his client. 'This must be defined before framing charge'
The chairman told Islam that these points have already been raised and they dont need to be repeated. 'We have already taken notes of your arguments,' he said.
He then said, when framing charges, the tribunal cannot go beyond the charge submitted by the prosecution. It is not for the tribunal to prepare the charge by themselves. 'It is absolute duty of the prosecution to prepare charge, he said.
Islam said that if the tribunal does this it will be doing the work of the prosecutor.
'Is there anywhere in the world who can show that the it is the duty of the the tribunal to frame charges?' he asked.
The chairman argued that in Bangladesh it is the court that prepares and frames the charge, but Islam said that the criminal procedural code should not be considered.
The chairman pointed to rule 38(1) which he said showed that the tribunal was responsible for framing the charge. 'The prosecution will prepare the charge and the tribunal will after consideration decide what is charge frame.' he said.
Islam responded by saying that in no international tribunal is the charge prepared by the Judges. 'I will show you the rules of other tribunal' he said.
The chairman said that Islam should not show these procedures as we will follow this tribunal's Rules of Procedure which allows the tribunal to prepare and frame charge.
Islam argued that the tribunal's Rrules of procedure do not allow the judges to prepare the charge, and referring to the other international tribunals said that once a prima facie case has been found, the prosecutor should draft the indictment.
The chairman asked Islam who will determine in our law the prima facie case? It is us – if so we will prepare the charge. He asked Islam whether after determination of prima facie case the tribunal should send it back to the prosecutor to draft the charge.
Islam argued that under rule 19 of the Bangladesh tribunal's rules of procedure, it is the chief prosecutor who needs to satisfy himself about the prima facie case first and only if he is satisfied can he proceed with formal charge. He referred to section 18(4) of the ICTY statute.
The chairman said that this international law was not applicable and that in Bangladesh law the prosecution is required to place the charge in the form of an application and the tribunal will then consider it and can prepare charge if required.
Islam again asked the tribunal why it was taking over the responsibility of the prosecutors. 'You can frame, but not prepare,' the formal charge, he said.
The chairman denied this and said that framing of charges was the tribunal's responsibility and that they will do this. He said that the 'formal charge is in the form of a petition'.
Islam then made a point about the investigation report. 'Is there any investigation report with the tribunal?' he asked. He said at the time of taking formal charge the tribunal should taken into account consideration of all documents.
Islam said, the investigation report is supposed to be given to the defence. 'It is a game of hide and seek'.
He pointed to rule 18 of the rules of procedure which states, 'Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare a formal charge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.'
And then rule 19 which states 'If any Investigation Report does not disclose a prima facie case against an accused the Chief Prosecutor may initiate further investigation or stop the said investigation.'
[I think the point that the defence lawyer was trying to make was the importance of the investigation report which the defence did not have.]
Islam then argued that the prosecutors had admitted that there are some vagueness in the charge, but they want to cure them during trial. 'There is no scope to cure the gaps in trial,' he said. 'If there is vagueness, unless they are specified, then charge cannot be framed?'
He said that what the prosecution was arguing was 'against the law, it was misconceived'
Islam said that subsequent to the formal charge if any new evidence is found then the Tribunal may frame the charge again, but that if the existing charge is vague then the accused should be discharged.
He read out section 222 of the Bangladesh Criminal Procedure Code which states: 'Particulars as to time, place and person: The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.'
Islam, said 'Each time was are telling you' about the vagueness.
The chairman said, 'we will consider everything'
Islam then said that the prosecution admits that there is no inconsistency between domestic law and international law. He then said that the prosecutor appears to be supporting the argument of the defence through his submissions on Article 15(2) of ICCPR which provides that a person can be tried in accordance with the law that existing at the time of commission of crime.
Islam then said that the tribunal had inaccurately stated that the international covenants are not binding since these are signed by the ministers and not passed in parliament. He pointed to article 7 and 145(A) of the constitution to point bout that an international treaty has binding authority.
Justice Jahir then pointed to an Americna court case where he said that a US court had decided that the court was not bound by the Vienna Convention even though the USA was signatory to this convention.
Islam argued that it is not relevant what the US courts have done.
Jahir responded by saying that he was quoting the case to show that these treaties are 'not binding on this court'.
Islam then said that there was wholesale lack of mens rea [mental element of the crime i.e intention] in the formal charge and argued that as a result the tribunal cannot frame charge on this formal charge.
Islam then moved onto modes of liability and said that the prosecution had not identified in which of the counts they would like to bring in the concept of command responsibility. Islam argued that without this specification it was not possible for the accused to prepare his defence.
Islam then discussed insufficient evidence and said that the tribunal cannot 'fill up the lacuna of the prosecutor.'
The chairman said that the tribunal would not do that.
Prosecutor Zead Al-Malum stood up and said that the prosecutors also do not want the tribunal to feel up any gaps.
Islam said that the prosecutor had claimed that three writ petitions have been filed challenging the 1973 Act and the High Court Division rejected all of them. 'It is our submission that there is no scope to challenge this Act before the High Court Division or before any authority. This Tribunal is the only authority to raise any deficiency in the Act,' he said.
Islam said that if the tribunal found the law to be defective the accused must be discharged.
The prosecution has already admitted that if there is any deficiency in our law then we can use international instruments for assistance. But the prosecution did not specify how this can be done.
Islam said that the offences need to be defined for the interest of all the parties. He said that crimes against humanity was merely a list of offences. 'What is murder, extermination ... Is this set out in the law? Are the elements of the offence defined in the Act. In the ICTY this is defined in the Act, but here it is not.' He said that the 'offence of crimes against humanity and genocide still need elements to be defined, for the defence as well as for the tribunal.'
He also said that the Act did not mention the nexus between the offence of crimes against humanity and an international armed conflict.
He then moved onto the definition of Genocide. He said that there was an error in that the words ‘such as’ should actually be ‘as such’.
The chairman has said that it is not the court's duty to covert these words. 'We will go by our Act. We will take the meaning as it comes by the word ‘such as’.'
Islam complained that the act lacks definition.
Islam said that the prosecution had claimed that they have submitted the record of what happened at the safe home to the tribunal for consideration. This should not be done as they are inadmissible. Moreover they did not give us copy.
The chairman said that the tribunal had not found such a copy and that Ali must have been mistaken saying that.
Islam completed his arguments by summarising his points and he concluded by saying that they 'applied for the formal charge application to be discharged.'
Court was adjourned until 3 October for order on charge-framing.