Saturday, November 19, 2011

16 Nov 2011: Defence walkout

This hearing was supposed to hear arguments on the application filed by the defence seeking a review of the order framing charges against Delwar hossain.

However as soon as the proceedings started, the defence lawyers handed over two applications to the tribunal judges. One sought an explanation from the the chairman of the tribunal as to why he had not recused himself following the order of the tribunal of the 14 November which has left the decision up to his 'good conscience'.

The second asked for an adjournment of the hearing relating to the application (that was to be heard today) seeking a review of the charge-framing order until this new application relating to recusal was dealt with.

The tribunal chairman said that these applications should have been filed ahead of time.

Tajul Islam got up and explained the situation. He said that they waited until the morning to file them as they did not know whether or not the chairman of the tribunal was going to sit.

Islam said that we have set out the details in the application and we need to ask him why is he sitting at the tribunal, in good conscience.

Justice Kabir said, 'You submitted an [earlier] application. We gave our order. Whether he feels embarrassed or not is up to him (Nizamul Haque).

One of the tribunal judges said, 'I do not feel embarrassed, he can act as a judge.

The judges then discussed the matter privately with each other for a few minutes, and said that they would hear the application relating to the recusal matter on Sunday, 20 November.

Tajul Islam then said that unless and until there has been a disposal of this new application on recusal the tribunal should not deal with the application noq before the tribunal now

Haidar Ali got up and said, 'My lord the recusal application is a scheme only to delay trial and justice. there is no reason for this development. Nizamul Haque Nassim is there and the order has been passed and there is no problem

Islam responded by saying that sccording to the prosecution, the defence can’t question anything. 'We have raised many vital points in the application.'

The tribunal chairman said, 'Mr. Prosecuter take your seat.' He then said. 'The recusal application has been disposed off. Today is fixed for review application'

Islam said, 'We have also applied for adjournment'

The chairman said, 'No'

Islam said, 'We only had one day to make this application. We need time to see whether you will leave or not. We feel embarrassed while you are sitting here. As lawyers it’s also our duty to uphold your honour.'

The chairman said, 'Application will be heard next Sunday. Today's matter is fixed.'

Islam said, 'My argument to that since this application is pending, you cannot deal with another issue'

The chairman said, 'Rejected'

The lawyers then walked out

Nizamul Haque then immediately read out the following order:
'Today was to hear an application filed by the defence. In the meantime, just today honourable learned counsel at 10:30 submitted two applications before the registrar and in front of the tribunal and sought to hear the two applications.

It is noted that these two applications are not noted for hearing today. That the tribunal upon hearing himm fixed next Sunday, 20th November for hearing of these applications.

Today is fixed for hearing the review application relating to the charge-frmaing order. Since in view of the fact that we fixed on Sunday to hear the application, Mr Tajul Islam suggested that he feels embarrassed to argue the review application today.

These applications are not before us. Even then the tribunal the tribunal requires that Tajul Islam should argue the the review application which was fixed, but Tajul Islam upon hearing the tribunal's view, left the court which is unwarranted and unbecoming for him.'

As the application was not pressed, it is rejected.

Defence lawyers press conference (Tajul Islam spoke)

'We have made an application regarding recusal of honourable Chairman. Everyone had expected he will respect the constitution and remove himself from his chair. We waited for two days to observe his action. When we came to court today and realised that he will be holding the hearing, we immediately filed two applications. We wanted to know on what considerable thought is he still at the tribunal.

We wanted time for review petition and adjournment which he dismissed without even looking at it.

If the tribunal continues in this way, we won’t get justice. We hope Mr Nizamul Haque Nasim will show good conscience and step aside.

While he is at the tribunal, we won’t participate in any of its activities.

According to clause 6(2), tribunal has to do everything to ensure justice.

We won’t attend court until the application is disposed of or the chairman recuses himself.

On Sunday there will be one petition. We’ll wait for the order and decide whether we’ll continue to attend.

Prosecution Press Conference (Zead Al Malum spoke)
'You are aware that if one wants to file an application at the tribunal, it has to be submitted to the registrar by afternoon of the previous day. Then it comes to list, and depending on the court, the hearing of that application is held on the next day or later. Haider Ali from prosecution pointed this out before the court.

Tajul Islam has acted in a manner unlawful of a lawyer. There is no legal rule for presenting before the court, repeatedly, something that has been disposed of. Despite that, Tajul Islam has pressurized the tribunal time and again and broke code of ethics and conducts of lawyers.

Tribunal said, as per legal rules, the hearing of his application will be held on Sunday, and it will proceed with the hearing of the review application scheduled for today. He (Tajul Islam) said since you would not hear the application we filed today, we walk out from the tribunal in protest.

Neither the constitution, nor any law of Bangladesh give right to lawyers to walk out of a tribunal

It is to be noted that the tribunal is conducting trial of killing of millions of people in a fair and transparent way, as per Bangladesh’s own law, with judges from the country’s Supreme Court, its own prosecution and investigating team. The trial and investigation is taking place openly. Our print and electronic media are following and observing the investigation.

There has been many research and there is many evidence on these humanitarian crimes around the world. They said we have not committed any crime or wrong in 1971. When prosecution framed charges transparently based on evidence...hearing of one formal charge goes on for few days. You know that even in the cases of serious trials in our country no court or special tribunal puts in as much time for hearing of charges. But this tribunal has done this.

These people can’t accept independence of Bangladesh. Many people involved with this tribunal were also associated with “Save East Pakistan” committee while staying abroad. We all know the identity of defence counsels.

Walking out from court is not approved of by Bangladesh Bar Council or Supreme Court Lawyers Association’s rule of procedure. To leave court, one has to take permission; otherwise it is seen as contempt of court. Tajul Islam has voluntarily and consciously violated the court. By doing so, they have expressed their effort of obstructing the judicial proceeding. We will consider taking legal action against his (Tajul’s) contempt of court.

Since the plea for review of charges was not presented by Tajul Islam before court, it has been rejected.'

When asked by a journalist, what happens when lawyers boycott the court?, he said that 'the law will take its own course. We, prosecution will abide by the law. We’ll think about what action we will take and keep you informed on whatever we do.'

A subsequent post will set out my comments on this

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