Tajul Islam argued first on behalf of Nizami. He first talked about his medical ailments. He then said that there were no reasonable ground to believe that the applicant will be convicted in this case. Also said that there is no allegation that the applicant has tampered with the witnesses or created any obstacle in the process of investigation. Then argued that his client has already been in custody for almost ten months, that the Investigation Authority has made no progress in their investigations during this period of time, and that there are no lawful grounds to continue or extend the detention of the applicant.
He then argued that, ‘the jail authorities have a consistent history of maltreatment of accused persons detained in their custody, and mentioned an incident relating to Delawar Hossain Sayedee that took place on 15th March 2011 where he was kept waiting for five hours and was alleged to have had ‘a sham medical checkup’ (see 20 April Sayedee bail application).
He then stated that, ‘Due to the manner in which the above medical check up was conducted, the Applicant has serious doubts about the possibility of providing proper medical treatment to him in the custody of the jail authorities.’
Then Islam argued that despite an order of this tribunal dated 21 April 2011 to give treatment to the applicant at BIRDEM Hospital, until the date of this hearing he has not received any such treatment. ‘The jail authorities are intentionally delaying much needed medical attention. As such the applicant has been denied prompt medical attention which is an important requirement given his medical conditions,’ he said,
Also said that ‘the Prosecution does not allege that in the event that bail is granted, the applicant may abscond.’ He added that, ‘The applicant 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 residential condition to reside at his addres where he can be regularly checked and monitored:
Islam said that under international principles he should be given bail
There was a short exchange about Nizami’s medical treatment with Islam saying that the jail authority was simply giving his client pills and medication on their own with the jail authority saying that they had the not received any order. The Tribunal chairman said that ‘treatment should be provided by default. No order is even necessary.’
Islam finished by saying that his client was old, had medical conditions, had been detained for 10 months, he had not been charged, and under these circumstances he should be given bail.
The prosecutor Rezaul Karim then got up. The Tribunal chairman asked the prosecutor why it was that the accused had not been given treatment in Birdem hospital. Karim responded by saying that he didn’t ‘see any reason for the jail authority to be doing this.’
Karim then said that the prosecutors, ‘Objected to the bail petition. The progress of investigation in satisfactory and there is proof of war crimes against Nizami. If he is granted bail, investigation will be hampered.’
‘Evidence has been collected by the investigation agency. They could’ve asked for bail if there was no significant development in investigation. But this is not the case here. There is specific evidence against him on killing, rape and arson. And on these instances bails can not be granted. Our law on bail clearly states that.’
Advocate Munshi Kabir, then stood up and spoke to the application by Mujahid for bail. He said that he wanted to adopt the arguments made by Tajul Islam on behalf of Nizami.
He went onto say, ‘Why is it that my client cant be granted bail. What will be the fate if he is granted bail. The prosecution says that intensive investigation is going on, that he has muscleman and will interfere, that there is no scope for bail.
The tribunal chairman interrupted and said, ‘That the prosecution’s point was that bail should not given as there is a prima facie case against the accused.’
Kabir said that granted the case was serious but there is no evidence that he was influential as a student leader. He went onto say that Mujahid’s father, Maulana Abdur Razzak, himself had been detained after 1971 but released ‘on the orders of Bangabandhu himself. He comes from a respectable family who is also connected and respected by Bangabandhu, our father of the nation.’
He said that his client supported the liberation of Bangladesh, ‘We support it, My client supports it.’ He said that his client was not a big leader at the time.
In relation to whether there was prima facie evidence against his client, he asked the Tribunal, ‘Is there any evidence before your lordships. Nothing.’
He said ‘3 million were killed, but we are not the people who killed. There are a list of people who were Razakers, and on the peace committee who did it.’
He emphasised the good character of his client.
In relation to a question about bail, Karim said, ‘Bail is a right of person who can be brought to court for trial.’
He then said that he himself would be the surety for his client. He promised that his client would not interfere with the trial proceedings or the investigations. ‘You have the power to cancel the bail, if he does,’ he said.
Rezaul Karim for the prosecutor again responded. He said that Mujahid during 1971 was president of ICS and chief of AL-badr. He committed war crimes in Faridpur.
He said that Mujahid had instigated people to commit war crimes. In the report there is specific evidence of war crimes. If he is granted bail investigation would be hampered. No witness will come forward to testify.
Tajul Islam then got up. He said that ‘there is no specific allegation, only for their political affiliation they are held.’ The prosecutor responded by saying that ‘It’s completely untrue that they are being held for their political affiliation.’
The Tribunal chairman then gave the order.
‘Two applications filed by accused Nizami and Mujahid praying for bail, are taken up for hearing. Advocates Tajul Islam and Munshi Ahsan Tauhid appeared for the two petitioners and Syed Rezaur Khan, learned prosecutor, appeared for the prosecution.Comment
It was contended by learned counsel Tajul Islam and Ahsan Kabir, learned counsel for the petitioners that are in custody for a long time and investigation is still going on, and nobody knows when it will be completed and as such they may be enlarged on bail.
They further submit that the prosecutor could not make out a prima facie case against the accused person but it has brought big allegations against them without foundation and as such they should be enlarged on bail considering their long detention. They submit that the jail authority did not comply with the order of the tribunal as to treatment of the accused on the ground that the order did not reach the jail from the office of the tribunal but it is found that the order was sent to the jail authority on time.
Lastly it was submitted that the accused petitioners should be enlarged on bail so that they can get treatment properly outside the jail.
On the other hand Mr Syed Rezaul Rahman and Syed Haider Ali, learned prosecutor, appeared for prosecution, opposed bail prayer. They submit that the investigation is at the fag end and it will be completed within two months and as such considering the above aspects, the petitioners should not be enlarged on bail. They further submit that if no order is passed by the Tribunal the jail authority is duty bound to provide treatment to the petitioners as and when necessary. They further submit that they will take steps in this regard so that the jail authority takes steps for the treatment of the accused. [They submit that allegations are heinous and so clear that people of Bangladesh know offences committed by accused person and so should not be enlarged on bail.] Lastly they submit that on the facts and circumstances of the case, the petitions of the bail should be refused.
We have heard submissions made by both sides and in consideration of the progress report made by the prosecution we find that progress of the investigation has been substantially made by the investigators. At this stage, when investigation is at fag end, and time for 1.5 months has been given to the investigators to complete the investigation we are not inclined to enlarge them on bail.
In consideration of the health conditions of the accused persons we again direct jail authority to arrange proper treatment for the accused persons and special food if required by taking them to Ibrahim Cardiac Hospital and Research Institute as directed earlier. We expect that jail authority will abide by this order. The two applications for bail are thus rejected at this stage.
For any obvious reasons if the accused person are transferred from Dhaka jail to another, Inspector General (jail) is instructed to direct the jail super of the jail to abide by the orders in relation to medical treatment.’
1. The reasons given for refusing bail are 'At this stage, when investigation is at fag end, and time for 1.5 months has been given to the investigators to complete the investigation we are not inclined to enlarge them on bail.' It remains unclear why the Tribunal considers these to be legitimate reasons to refused bail. The substantive issues about absconding, about risk of tampering with evidence are not engaged with by the Tribunal
2. It is notable that one of the defence lawyers talked about '3 million dead' and the responsibility being with other 'razakers' and members of the 'peace committee'. These are interesting admissions.