Sunday, July 31, 2011

14 Jul 2011: 'Prima facie' case against Sayedee

Three matters were before this hearing.

First, the tribunal members had to make a decision on whether to take ‘cognisance’ of the charges against Delwar Hossain Sayedee. At the previous hearing three days earlier,'formal charges’ against him were submitted by the prosecution to the tribunal.

Second, the defence had an application seeking copies of formal charge.

Thirdly, there was an application for Sayedee’s bail.

Cognisance of Charge
Prior to the tribunal reading out its order, there was first of all a short interchange between the Tribunal and the Chief Prosecutor relating to the provision of hard copies of all the documents which the tribunal had not yet been given.

The Tribunal chair then read out an order.
‘Today is fixed for taking cognizance of offence against the accused Sayedee, alias Delu, stated in the formal charge. Along with the formal charge the prosecution has also filed three CD cassettes, containing formal charge, investigation reports, papers, documents and the evidence in support of the prosecution case for our perusal. After perusing those materials, we are of the view that evidence of the case are prima facie available, regarding the offence stated under section 3(2) of the ICT Act 1973 against the accused Delwar Hossain Sayedee alias Delu alias Deliya. So cognizance under section 3(2) of the International Crimes Tribunal Act 1973 is allowed against the accused Delwar Hossain Sayedee alias Delu alias Deliya.

We also have found that they disclosed a prima facie case for trial of the accused. As the accused is already in custody no process is required to be issued. The prosecution is directed to submit the copies of formal charge and other documents in this tribunal by 17.07.2011 in compliance with the section 9 of the ICT Act 1973 and rule 18(4) of the rules of procedure and 10.08.11 is fixed for framing of charge if any. The defence is directed to receive the copies of documents, which they are entitled to get according to 18 (4) of the rules of procedure, from the registrar by 19.07.2011.'
Application for documents
The tribunal said that ‘both the defence’s petition for the disclosure of documents and Prosecution’s reply are frivolous.’

The defence lawyer, Tanvir responded by saying, ‘But, my lord, it would have been helpful if we could get the copies of the formal charge and other related documents.’ The tribunal chair said, ‘Even we didn’t get any papers; we got DVD, and based on that we took cognizance.’

The tribunal chair went onto say that, ‘the rules state that we will provide you copies and look what you did – you came up with a petition. You have to follow what is stated in the rules. If you don’t get the copies after that, then tell us, we will listen and do whatever we can.’

The defence lawyer again explained that they wanted the formal charge and other copies before cognizance, but the tribunal chairman said, ‘How would you get copies before cognizance? What if we didn’t take the case into cognizance?’ he then said, ‘We hope that you maintain the dignity of the tribunal. Everything has a limit, you cross your limits sometime.’

The defence lawyer withdrew the application.

Bail application
Mr Tanvir Ahmed Al Amin, the lawyer for Sayedee put forward his application for bail.

He said that, previously, the prosecution had argued three points about why bail should be rejected.

First, the accused petitioner is an influential character and likely to interfere with the proceedings of the trial. Secondly, a prima facie case is established against the accused petitioner. And thirdly, the accused petitioner should not be granted bail on medical grounds as medical attention is already provided. The prosecution also argued, he said, that there is also no ground to grant the accused petitioner bail, considering the brutality of crime that took place in 1971.

He then went onto argue that the court had refused the accused petitioner of bail mainly on two grounds: he might tamper evidence, and as he is already receiving medical treatment he is not entitled to be released on bail to get medical attention.

Tanvir then pointed out the newly inserted rule 34(3) in the newly amended rules of procedure, which says 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 of such conditions the accused may be taken into custody cancelling his bail.”

He said that under this rule the accused should be given bail.He gave five main reason:

He first argued that the accused was unlikely to tamper with witnesses. In relation to this he made the following points:
- on 31 May 2011 the Prosecution had admitted that the accused was not named in the 6 General Diaries filed in Pirojpur Sadar and Zianagar (Indurkani) Police Stations which had alleged that witness intimidation had occurred
- the investigation agency had also completed its investigation into the case
- in the new amendments to the rules of procedure, a new Rule 58A has been inserted that states that “The Tribunal on its own initiative, or on the application of either party, may pass necessary order directing the concerned authorities of the government to ensure protection, privacy and well-being of the witnesses and or victims. This process will be confidential and the other side will not be notified”.
= Sayedee’s house is in Shahidbagh, Dhaka and that the alleged crime bases concern the Pirojpur District which are nearly 500km away in the south-western region of Bangladesh
- that he is a religious scholar and a man of good character.
- that 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
- that the accused is also willing to comply with a residence condition to reside at his Dhaka address where his presence can be regularly checked and monitored, and is also willing to report to this Tribunal on an agreed regular basis.
- that the accused was willing to undertake not to travel to any crime-base areas without prior permission from the Tribunal
- he is willing to undertake not to contact any Prosecution witnesses or to interfere with the trial proceedings.
- the tribunal should take into consideration the lack of evidence connecting the accused to any claims of witness intimidation, the fact that the investigation report is completed; there are newly inserted witness protections provisions; and the bail conditions volunteered by the accused.

Secondly, Amin argued that bail can be granted even if there are allegations of genocide. On this he made the following points:
- that all the crimes under the jurisdiction of the tribunal solely concerns crimes of a serious and grave nature including crimes against humanity, genocide and war crimes and therefore the Tribunal envisages that bail can be granted regardless of the nature of allegations formed. - that all the UN sponsored tribunal have jurisdiction over genocide and they all provide the right to provisional release. (At this point the tribunal said, ‘We know that’ and the lawyer responded by saying, ‘We have come up with some international decision of the same manner.’)
- that there are two cases in support of their argument. First, Prosecutor v Hadizihasanovic where the Yugoslav tribunal held that the rule regarding provisional release/bail must be interpreted in light of the International Covenant on Civil and Political Rights and that in this regard, no distinction should be made between domestic criminal and international criminal proceedings. And the second is the case of Prosecutor v Stanisic, where 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”.
- that that the ICTY has on a number of occasions provided provisional release to accused persons formally charged with genocide. (The tribunal chair said, ‘It’s nothing new…’ and the lawyer responded by saying, ‘We provided international decisions to convince your lordship. There were number of occasions where bails were granted even after taking charges.’)

Thirdly, the defence lawyer argued that bail was a right, not a privilege. On this point, he said:
- on 31 May 2011 the Prosecution had stated that bail should be refused on the basis that: “we have to remember the brutality of 1971…we cannot ignore the pain of the countrymen during 1971”.
- that the amended Rules of Procedure however provide for the right to be presumed innocent under Rule 43 (2) and that the presumption of innocence is also enshrined in Article 14 (2) of the International Covenant on Civil and Political Rights which states that “Everyone charged with a criminal offence shall have the right to be presumed innocent until guilty according to law”.
- that article 9(2) of the ICCPR states that, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It 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.”
- that the ‘presumption of innocence enshrined in Article 14 (2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under international law’ and that following Article 9 (3) ICCPR this right arises at any stage of judicial proceedings and in particular the right to bail is fundamentally upheld during pre-trial proceedings.
- that in its General Comment No. 8, the Human Rights Committee which specified that “pre-trial detention should be an exception and as short as possible.”
- that Article 9 (1) of the ICCPR states that “No one shall be subjected to arbitrary arrest or detention,’ and that the jurisprudence of the Human Rights committee has defined the notion of “arbitrariness” as being broadly interpreted “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.”
- that as a result of the above 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-Petitioner for events suffered in 1971 before any finding of guilt is contrary to the Accused-Petitioner right to be presumed innocence.’

The tribunal chair said, ‘So, you are saying we can’t keep any accused in jail...’

The defence lawyer responded by saying, ‘Yes, of course. But my lord, only if the accused can temper with evidence, and influence the witness. So, bail can be denied on three grounds: the probability of influencing the trial, if he may try to abscond; and If he could commit more crime.

‘There are no criminal charges against accused and there is no way that he will be involved in crimes. Furthermore, investigation is completed and witness protection is provided by the tribunal. So, there is also no grounds to say that he will interfere with the investigation. There’s only one point to argue that he will abscond, but we said he is willing to surrender his passport, will not apply for any travel documents and will reside in his house. Now that no interference is realistic, the accused petitioner should be granted bail.’

The tribunal said ‘Don’t use ‘should be’, we’ve told you before. You must use ‘maybe’. You try to dictate the court. We’ve already said this one day. ‘Must’, ‘Should’, should be avoided. This is not right.’ The defence lawyer said, ‘We are not trying to dictate the court my lord’ but the tribunal responded by saying, ‘But your approach doesn’t show that.’

Fourthly, the lawyer argued that the medical treatment can continue whilst the accused was on bail

Fifthly Tanvir set out various conditions of bail that the accused was willing to be subject to. These were:
- he surrender of his passport to the Tribunal;
- he does not apply for any travel documents without the prior permission of the Tribunal;
- he resides at 914, Shahidbagh, Dhaka - 1217;
- he reports to the Tribunal on an agreed regular basis;
- he does not travel to any crime-base areas without prior permission;
- he does not contact any of the Prosecution witnesses;
- he does not interfere with any part of the trial proceedings; and
- he continues to receive specialised medical treatment at ICHRI hospital.

The lawyer finally submitted that Mr. A. K. M. Mustafizur Rahman, a family friend of the accused was willing to provide surety of an agreed amount as a condition for bail.

He finished by saying, ‘Considering the petitioner’s age, good character and willingness to comply with the conditions imposed by the tribunal, we pray for granting him bail.

'That is our petition. Your lordship has already inserted amendment to protect the witness, bail may be considered at any stage of the procedure. There is no scope of interference, and there is also no serious evidence. War crimes happened 40 years ago, in 1971, but the prosecution has very recently brought the charges. Today you got prima facie evidence and the accused has already passed 10 months in jail without establishing any prima facie case. Considering all the points the accused may be granted bail. And he will obviously not abscond; he is ready not to travel without prior permission of the court. Considering these submissions the accused petitioner prays for the bail.’

The tribunal chair said he had one question. You say, “No one shall be deprived of liberty unless he is in accordance with law, but the accused is in custody in accordance with law. Are you saying he in custody against law?’

The defence lawyer said, ‘No, of course, it was your order. No problem about that. We were just saying without formal charge he was detained, and there was no necessary ground for his detention.’ The tribunal chair then asked, ‘For what purpose you put it there for?’ The lawyer responded by saying. ‘We made it clear in the application that the detention must be reasonable and necessary and the Prosecution must show necessary ground for detention.’

The tribunal chair against said, ‘Is he detained against law? Why are you saying this?’ the lawyer again said, ‘We are just saying to keep the accused detained the prosecution has to establish ground, and they have to establish that the detention is necessary and reasonable.’ The tribunal chair again said, ‘Yes, you could’ve said that, but why did you state it like this?’

The prosecutor, Haider Ali then stood up to make his presentation. The tribunal chair said, ‘In changing circumstances, the defence wants bail, as the investigation is over and now there is witness protection act, so influencing the witness is not possible. What do you say to this?

Haider Ali said, ‘Well, we thought they were not going to ask for bail after the investigation stage, because before the investigation they said there’s no case as there was no evidence. And now that there’s a case, they are saying there’s no problem if you let the accused go.’

‘Before anything, I would like to talk about something that is stated in the law.

‘At first, let’s look at section 9(1) of the Act – it talks about the commencement of proceedings, it shows how to proceed with all the steps. On behalf of the prosecution we only want to say that we will never say or do anything outside the law. We will not take one single step out of the law.

‘We want a fair trial and we haven’t done anything against law. None of our statements anywhere were against the law, and none of the procedures that we did were outside law. To ensure a fair and free trial we will provide any help from the prosecution’s part.

‘During 1971, there were many incidents that happened in Pirojpur, in the greater Barisal division, during the armed conflict. There are details in the investigation report about what he did as a member of the Razakar, and he was present at the time the crimes took place.

'The investigation was fair and done within the scope of law. The report is true, it has substantial materials. The chief prosecutor scrutinized it and he was satisfied. There is proof that there was evidence of involvement of the accused in war crimes.

'We have seen the formal charge, and you have seen it too. You took cognizance today and set the date to create charge. Then the trial will start.

'They are saying we took more time. We didn’t take even one more minute. You provided us the time, and we completed the process in due time.’

He then quoted a series of rules.

‘Rule 18 says that 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.

Rule 20 says that, at the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence.

Rule 22 says that, after taking cognizance of an offence the Tribunal shall fix a date for appearance of the accused and issue summons or warrant for appearance as it thinks proper.

Rule 29 says 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 tribunal chair then interrupted and said, ‘without even reading those rules some are just giving lectures… ‘ (He was referring I think to the defence lawyers). The lawyer then continued reading out the rules.

‘Rule 32 says, that if the accused, despite publication of notice in daily news papers, fails to appear before the Tribunal on the date and time so specified therein, and the Tribunal has reason to believe that the accused has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect for arresting him, the trial of such accused shall commence and be held in absentia. ‘

‘So, we want to say that whatever has happened till now happened according to law. No party should have anything to say against the procedure as everything was done according to ICT rules. ‘

'I now want to talk about the bail I have to say, you don’t need legislation for bail, bail can be granted, but when? To grant bail, you have to consider long detention, there is also consideration about arbitrary detention. But the accused was detained based on specific allegations and he is on a trial, so he was not detained arbitrarily. Now, we have definite charges against him.

'What are the charges: the defence said the accused resides in Shahidbag, Dhaka, and the crime scene is 300 km away. But, the investigation report says that at the time of committing the crime, he was personally present and he took active part in the offence. We have all the details in the report and we have witnesses and evidence.

‘Again, only in case of long detention without trial can he be considered for bail. But, can this detention be called a long detention?

‘Every step is inside the time frame we were provided according to law. By the prosecution, by the tribunal, there was no time-wasting. And, if the trial is fast there would be no case of long detention in the future too.

‘During armed conflict, not only one or two people, but more than 50 people were killed. Villages were set on fire, towns were set on fire, people had to leave there home, their country. Everything has come up in the investigation report. We have to keep them in mind, listen to their prayers, and their cries. We saw how people were killed, how mass-graves were made. We have to take all these into consideration. We can not forget what happened.’

‘Now there is prima facie case established, judicial notice has been served and cognizance of the offence is taken.

‘The accused is so influential that he took his name out from the four general diaries that were filed against him. He could influence police even when he was in jail. If he is set free the trial would be hampered greatly, there would be no fair trial. But, if nothing is proven he can go free, there is no problem.

‘Now the charges are established, and the trial is on. So, we are praying to reject the bail petition.’

The defence lawyer then responded:

‘My lord: that was a long reply to the bail petition, so many things were said. But we have seen serious allegations against the Investigation Agency that they did not do the investigation properly. Now, if this case goes to trial stage, these matters also have to be taken into consideration.

'My humble submission is that I got only one valid point from the prosecutors reply, and that is trial would be interfered if the accused is granted bail. There is no question of interfering in the investigation process or intimidating any witness now.

'So, the only valid point from the prosecution now is that if the accused petitioner is released on bail he will interfere in the trial process, but they said it without substantiating how.'

The tribunal chair then said, ‘There was also another point, the occurrences in 1971, gravity of the offence...’

The defence lawyer then said that he had dealt with that issue in his previous submission ‘[In the 1973 Act] is not defined what is the meaning of war crimes, we don’t know. We don’t know what was meant by genocide. What are the elements of crime? What does prosecution have to prove, what to the defence has to prepare their rebuttal on, nothing has been defined. The offences should have been defined from the onset even before taking cognizance, because if the offences and the elements of it are not stated, on which basis the crimes would be taken into cognizance.

'The ICT act and rules only state the words “war crimes”, but there is no definition of the crimes.

'I don’t know what the offences are stated in the formal charges; the accused doesn’t know what are the offences. But as long as the crimes are not proven he shall be presumed as an innocent person, and he has the right to get bail, it is not a privilege. Clearly, guilt has not been proven and there are no specific allegations. And on assumption of being innocent bail right is accrued.'

The tribunal then said, ‘So, you think bail right is accrued on the ground of assumption of being innocent?’

The defence lawyer responded, ‘Yes my lord, if he is innocent, he has the right to get bail. My humble submission is, yes my lord. But, you can bar it, if you think that the accused will interfere with the trial process if he is released.’

The tribunal chair said, ‘Bail is a right only when offence is bailable.’

Tanvir responded: ‘My lord, rather than considering the gravity of the offence, it should be considered if he will interfere with the trial, whether he will appear for trial. Considering all that the prosecution has only one valid point that he will interfere the trial, but without substantiating how. ‘

‘They have to say how he’ll interfere, they have to say these are the ways we are anticipating how he’ll interfere with the trial. So, they are raising very vague allegations that the accused will interfere with the trial. But that can not be taken into account.

'So, I request considering the condition placed before your lordship the accused petitioner may be granted bail by following any or all of the conditions.'

There was then a delay of 30 seconds, and the Tribunal chair read out his order
‘This is an application for bail of the accused petitioner Maulana Delwar Hossain Sayedee alias Delu alias Deliya. Mr Tanvir Ahmed Al Amin, learned counsel, appearing for the petitioner placed before us. He submitted that just today the tribunal has taken cognizance of the offence in this case against the accused petitioner. As such a new phenomenon has arisen. All the petitions for bail before submission of formal charge were rejected on the ground that the accused petitioner is an influential person and he can influence the prosecution of the case. But when formal charge is submitted and cognizance has been taken there is no chance of influencing the investigation anymore. Also the accused is ready to abide by any conditions imposed by this tribunal if enlarged on bail. He further submitted that the law regarding bail, both national and international, empowers the tribunal to grant the petitioner the bail. He further submitted that the gravity of offence, however big it may be, can’t be ground for rejecting the bail. Considering all these points, he submitted that the accused petitioner who is an old man and who is also sick may be enlarged on bail, so that he can face trial as a free man.

Mr Syed Hyder Ali, the learned prosecutor, appearing for the prosecution, submitted that this is a case where bail application submitted after finding prima facie case by the investigating agency and today tribunal took cognizance of the offence, and by taking cognizance this tribunal also found prima facie evidence. He further submitted that this is a case where the gravity of the offence is so high, killing more than 50 people, looting, arson, and deportation, torture etc are available in the formal charge which have been found prima facie by the investigation agency and in case of this nature, where cognisance taken, there should be no granting of bail. Mr Syed Hyder Ali further submitted that the age and health condition of the petitioner has always been considered by the tribunal in its early orders which rejected bail, but that the tribunal allowed special facilities which as directed by the tribunal have been provided.
At this point the defence counsel interrupted and said, ‘There was no such things in the prosecutor’s submission.’ The tribunal chair ignored him and said, ‘Please sit down.’

Again the defence lawyer said, ‘These things were not even said ….’, and the tribunal chair said, ‘Would you please sit down? Let me pass the order, please. Sit down.’ The tribunal chair continued with giving his order:
‘Last of all, the learned counsel said considering all these he is in custody for a long time. The learned prosecutor submits that the petitioner was in custody in eight or nine months and this term of detention can’t be termed as a long detention in any way.

Lastly he submitted, considering all these aspects this accused petitioner may not be granted a bail. We heard learned counsel and the learned prosecution given our anxious thought. This is a case where allegations of section 3(2) of the ICT act has been prima facie established and the investigation authority; prosecution has submitted the formal charge and considering the formal charge this tribunal took cognizance of the offence and a date for framing charges has been fixed that means the proceedings of this case has already started.

The allegations are grave in nature. The accused petitioner is an aged man, and an influential person, and also a member of the parliament. His health condition as has been submitted earlier has not been good and the tribunal directed the prison authority to arrange suitable health friendly vehicle and food. This is a case where detention of 8–9 months can be in no way termed as a long detention either in national or international law. The examples stated by the counsel regarding ICCPR were also considered by us. We are of the view the provisions do not give the accused right to get bail. In consideration of all the aspects pressed before us and perusing the documents we are of the view that at this stage the bail prayer can’t be allowed. The bail prayer is thus rejected.

Another petition filed by the counsel for immediate disclosure of documents was not pressed. As such, that petition is also rejected. The next date has been fixed on 10.8.11 for framing charges. On that day the jail authority should produce the petitioner in the court.
The defence lawyer then got up and asked whether they could get a get a copy of both of the orders, but the tribunal chair said, ‘No copy will be provided.’

The defence lawyer then said,’ My lord we want to review the order, so we need a copy. If we don’t get copy how can we file a petition?’ the tribunal chair again said, ‘You will not be given any copy.’

The lawyer then said, ‘My lord, we don’t understand. How are we going to go through all the order and all the arguments if we want to review the order?’ The tribunal chair said ‘I don’t care how you are going to do it.’

The defence said, ‘My lord, justice has to be served, it is a mere copy.’

Statement made by defence lawyers:
This is a translation of what Tajul Islam, the main defence lawyer said out side the tribunal:
‘You all know that today was fixed for taking the charges into account against the accused (to initiate the process of creating charges) and there was a bail petition from us. The tribunal has taken the charges into account i.e. taking cognizance of the offence. And you all know that it is said that the tribunal will deal with international crimes. But nowhere in our acts or rules, are the elements of offences/crimes defined. That’s why we always said that these elements are available in international rules. While taking cognizance of the offence, if your law doesn’t even have the elements of offences defined, how cognizance of the offences can be taken? We tried to argue about it before, but the court took cognizance anyway without even listening to our arguments. But we will review this issue. Where the elements of the crimes are not defined, how the tribunal can take cognizance without any definite decision? Anyway, they took cognizance, and 10.08.2011 was fixed for creating charge.

We have raised many definite issues in our bail petition. There were issues like hampering investigation, absconding etc. We argued on every point and placed our rebuttal that there is no question of interfering investigation or absconding. But he didn’t consider our arguments; what he did is that he put in some arguments in the order that were not even submitted by the prosecution. I said that they were not in the submission of the prosecution, and why is he putting this in the order. He told me to sit down, and said that he is giving his order after looking at the application. We don’t know why he said that because the application of the prosecution also doesn’t contain any such arguments. Then we wanted a copy of today’s order because we want to review today’s order. You know that we can not appeal against any order, but we can ask for a review from the tribunal, against the tribunal’s own order. If I want to review his order, I have to read every line, understand every point and then decide on which point I am going to put my arguments. We were surprised that he refused to give us a copy. We tried to convince him saying that this is a trial to ensure justice, and the intention of ensuring justice has to be visible. We said that at least to ensure justice the order copy has to be provided to us so that we can read this, understand this and bring a review petition. We are very sorry to say that they refused our prayer without listening to the arguments.

Journo: Are you raising questions the neutrality and the fairness of the tribunal?

At this point we are not raising any questions and we don’t want to say anything. You can interpret it any way you want to. You all understand that it does no harm to anyone – the tribunal or the prosecution – to give a copy of the order to us. It is a special and complex trial. We have to understand every word, we have read every word. In all other international and even national courts, everyone’s given a copy of the order. In this case, in this new and complex tribunal, the copy is needed more than ever. If we can’t find any definite charges, if we can’t get the order how can I defend the accused? I don’t understand this, and I guess no one in this world would understand this. I don’t know how you would interpret this.”
1. No reasons were given as to why, in the view of the tribunal there was a prima facie case against the accused, and the defence were not given an opportunity, prior to its decision, to make arguments as to why there was no prima facie case.

2. In the order rejecting bail, the tribunal chairman, whilst summarising the prosecution’s argument introduced an argument that the prosecution had not made in either its oral or written submissions – relating to adequacy of medical care in detention. It is perfectly appropriate for the tribunal to use an argument not made by either sides to support its own decision, but here the tribunal did not do that, but put into the summary of the prosecution an argument that the prosecution had not even used. This clearly is an inappropriate thing to do and suggests that the tribunal is trying to bolster up the arguments of the prosecution. The tribunal was informed right at that moment about the mistake, and could easily have corrected, but failed to do so.

3. At the same time, the summary of the defence argument were incomplete – and did not even mention their arguments about interfering with the witnesses.

4.The reasons given by the tribunal as to why bail was not given were as follows:
‘The allegations are grave in nature. The accused petitioner is an aged man, and an influential person, and also a member of the parliament. His health condition as has been submitted earlier has not been good and the tribunal directed the prison authority to arrange suitable health friendly vehicle and food. This is a case where detention of 8–9 months can be in no way termed as a long detention either in national or international law. The examples stated by the counsel regarding ICCPR were also considered by us. We are of the view the provisions do not give the accused right to get bail. In consideration of all the aspects pressed before us and perusing the documents we are of the view that at this stage the bail prayer can’t be allowed.’
First, this does not engage at all with most of the arguments made by the defence. Second, it states: ‘This is a case where detention of 8–9 months can be in no way termed as a long detention either in national or international law,’ – but it is not clear how it comes to this conclusion, since it 8/9 months pre charge detention is clearly a pretty long time. Secondly, the order states that ‘The examples stated by the counsel regarding ICCPR were also considered by us. We are of the view the provisions do not give the accused right to get bail,’ – however it does in no way explain why the tribunal is of this view.

In effect, this is an unreasoned order.

5. It remains a mystery why the tribunal are not willing to provide the defence copies of its orders. They have been given permission by the tribunal to receive copies of less than half the total orders made orally in court.
See: ICT's refusal to provide copies of orders criticised

6. Also, appears that Tribunal fail to understand one particular argument made by the defence, which is that even though the detention of the accused follows the law as set down in the tribunal, it must, according to decisions of the Human Rights Committee interpreting Article 14 of the ICPPR (which Bangladesh government is a signatory), also be 'reasonable and necessary'. Note how the tribunal keep on arguing (as set out above) that the detention followed legal procedure, despite the lawyer continually referring to fact that there is an additional requirement of detention being 'necessary and reasonable'.

21 July 2011: Alim in court

Md Abdul Alim was brought to the Tribunal and a progress report into his investigation was submitted by the prosecution.

Alim is the only one of the accused who has obtained bail. See here for hearing where he got bail.

Haider Ali, a prosecutor, said that progress in the investigation was good, evidence has been found, and pointed to parts of the report which explained why the investigators needed more time, and what evidence had already been obtained.

He then sought 6 months to complete the investigation. The tribunal chair however said that the rules say that every three months the tribunal shall review the investigation report.

Another prosecutor, Mr Zead Al Malum then stood up and started to read out various passages of a press release that had been issued by the Jamaat-e-Islami which was critical of the tribunal. The tribunal chair then said that he should raise it again after they passed the order.

After consultation between the judges for a few minutes - the longest pre-order consultation between the judges so far - the following order was passed:
‘Accused Md. Abdul Alim alias M A. Alim is present in the Court today. The prosecution has submitted a progress report regarding the development of the investigation of the case against him. Copy has been served. We have perused the report. We have heard Mr. S Haider Ali, the learned prosecutor who stated that the investigation is going on in this respect and have collected evidences about atrocities committed during war of 1971. He prayed for further time to continue the investigation.

On the other hand Mr. M. Tajul Islam, learned counsel appearing on behalf of the petitioner stated that the accused-petitioner is on bail. As such he has no objection if time allowed for conclusion of investigation, but objected to some averments made in the progress report.

We have heard both the side. We are of the view that for the ends of justice some more time for prosecution to complete investigation. Let the date be fixed on 16-10-11. On that day the the investigation agency is to submit investigation report or progress report whichever is available. The accused-petitioner must also be present before this tribunal on that date.
After passing the Order, the prosecutor, Mr Zead Al Malum again stood up and read out parts of the Jammaat press release.

The chairman said that this was not a public document, but that if it had been published in the newspapers they would have issued a suo-moto rule in relation to it. He told the prosecutor that he should raise the issue in a formal application to the tribunal.

12 Jul 2011: Progress report on Jamaat leaders

Present in court were four of the Jamaat-e-Islami accused, Nizami, Mujahid, Kamruzzaman and Molla.

The chief prosecutor submitted a progress report, and pointed to page 72 of the report, and the tribunal read it

The tribunal chair asked the chief prosecutor, ‘You need more time? I’ve read page 72, and the summary of the submission, as it seems, you need more time, is that correct?’ The prosecutor agreed.

The tribunal chair said, ‘But how much time do you need? On 2nd August it will be one year since their detention. You know what the rule says – the investigation has to be completed within one year. Now, how long do you think it would take to finish the investigation? You have a deadline and it is one year, otherwise the tribunal may grant bail to the accused.’

The prosecutor said that they needed ‘a month or so’. The tribunal chair said, ‘There are many things that are here in the report. I see you have made some progress but it seems you need more time.’ The prosecutor then said that they can complete the investigation by 1 August. 'Let up hope that we can come up to the lordship's expectations.'

The defence lawyer then stood up and said, ‘the prosecution is playing the same cassette over and over again – we need time. But the prosecution are failing again and again. the prosecution can take its time, no problem – but why are the accused kept in jail. You came up with allegations after 40 years and still you could not come up with substantial evidence or even a report. But why should the accused remain detained? The existing legislation must be taken into account my lord. Where does it say that the prosecution can extend the time?'

‘Another thing is that this tribunal has been termed as domestic tribunal by the honorable registrar, but why? This is international crimes tribunal.

The tribunal chair said, yes, ‘International Crimes Tribunal within bracket Act

The defence lawyer then said, ‘If this trial has to follow international law there are many obligations to be fulfilled. We think that whenever there are international obligations to be fulfilled, this tribunal is termed as a domestic one to escape those responsibilities.’

The tribunal then said, ‘Look, we are taking every international decision into account. If you come up with the decision of a Cambodian court or even ICC, you can, nobody will bar you. We said that we will consider those. But that doesn’t make this tribunal to become an international one.’

The defence lawyer then said, ‘But whenever we talk about international crimes, talking about ICC it is being said that the tribunal is not international.’

The tribunal chair responded, ‘But we have taken every international decision that you came up with into consideration, not a single argument was barred. So, why are you saying this today? We are saying this over and over again that this is a domestic tribunal dealing with international crimes.’

The defence lawyer then said, ‘But whenever we are coming up with international laws the prosecution is saying it is domestic.’ The tribunal said,‘let the prosecution present their case, and you present yours. The decision is made by us.’

The Tribunal chair said that whatever the tribunal registrar said is '100 percent correct'

Islam then said that the next submission is that it has been almost one year since the accused have been detained. He said that The accused are in bad health condition. There is no insulin in the jail and some accused even had heart surgery. For getting proper medical treatment they should be transferred to central jail where these facilities are available.

He claimed that the doctor suggested that some of them need straight 10-days of treatment in a hospital. 'They can’t do without insulin but it’s not being supplied.'

The tribunal chair then spoke to the chief prosecutor. ‘You said before that you will provide all sorts of cooperation regarding their treatment. There good treatment must be ensured. There were also orders passed on it. You should ask Jail Authority (JA) to cooperate. Please contact JA so that they provide proper treatment and other medication. About their treatment everyone has to be serious. Everybody has their right to get treatment. Their sickness, their health and medication has to be taken with utmost importance. ‘

Islam then said that ‘In the Kashimpur jail there’s not even any arrangement to keep insulin.’

The tribunal chair said, ‘We passed orders, and we have been very clear that they must get all sorts of treatment.’

The tribunal chair then passed the following order:
‘Today is fixed for submitting investigation report or progress report by the prosecution. The accused persons have been produced by the prison authority and they are present in the court. Mr Golam Arif Tipu, the chief prosecutor, for the prosecution, submits by producing a progress report that some more time is required for completion of the investigation report. He also said that the investigation is at the fag end and soon they expect that they’ll submit the investigation report in form of formal charge to this tribunal.

Mr Tajul Islam, learned counsel, pleaded for the accused persons objected to the prayer for time by the prosecution for the progress report.

On 2/8/2010 this tribunal issued warrant of arrest against the accused persons. One year is going to be lapse on 1st August next. We’ve given anxious thought to this submissions of both sides. We are of the view that some more time should be given to the prosecution in this respect. The prosecution is directed to submit the investigation report within 1/8/11.

The four bail applications filed by the defence praying for bail of the accused persons. Considering the fact that the time of investigation is going to be completed, and one year is going to lapse on 1/8/11, we are of the view that those petitions by the defence should be heard then. Let the bail petitions also be heard on 1/8/11.

There was also discussion about another application filed by the defence concerning the signing of the accused’s income tax returns.

The following order was passed:
'Mr Tajul Islam submitted that the accused are to submit tax return and sign those returns. But Jail Authority is not allowing them to sign. The prosecution submitted that normally the jail authority should allow the accused persons to sign this tax return. He also submitted that according to jail coude this should be allowed. Upon hearing both sides we are of the view that the accused has a rights to sign the income tax and submit it to the proper authority. Therefore the Jail Authority is directed to allow the accused to sign their income tax return to submit it to the proper authority. Let a copy of this be served to jail authority
Advocate Farid, for the defendent Mollah then got up and briefly complained about lack of insulin in the jail for his client, and his general health conditions

The tribunal is correct to say that it allows the defence to make arguments relating to international legal norms, however it is also the case the tribunal either does not respond to those arguments, or when it does it does not explain why it is not rejecting them. The only exception to this relates to the standard of allowing a lawyer to be present during interrogation, where the tribunal has explained why it is not following that norm.

11 Jul 2011: Formal charges against Sayedee

The hearing started with the tribunal chair saying that they would not hear the bail petition relating to Delwar Hossain Sayedee that day.

The chief prosecutor then stood up and said that this was the date fixed for the submission of the formal charge. At the previous hearing on 31 May relating to Sayedee, the investigation agency presented to the prosecution its final report, and the tribunal fixed this day for the prosecution to present its formal charges, if at all.

‘Now that the investigation agency has submitted its report was have submitted the formal charge, It is detailed in the petition as to what the offences are involved and how the accused is implicated in the case,' he said

The tribunal chair then passed an order:
‘Today is fixed for the submission of formal charges. The prosecution has submitted formal charges before the registrar which have been presented before us. Let the date of 14/7/2011 be set for hearing of cognisance. Application for bail has been submitted paying for bail of accused Sayedee, which has also been perused by us. Let that also be heard on 14 July 2011.’

Sayedee's defence lawyer, Tanvir Ahmed Al Amin, then stood up and said that three days was not sufficient for the the defence to reply.

There was then an exchange between the defence and the tribunal about whether they had a right to a copy of the charges at this stage and also whether they had a right to argue before the tribunal before he made his decision on whether the tribunal should take cognisance of the charge.

The tribunal chair was arguing that there was a difference between taking cognisance of the charges and the framing of the charges, and that after cognisance was taken by the tribunal the defence would get a copy of the formal charges, and at the time of framing of the charges the defence would be able to make an application to the tribunal.

Sunday, July 3, 2011

Changes to Procedural rules

The registrar of the International Crimes Tribunal has just released the new amendments to the ICT's Rules of Procedure which were gazetted on 28 June.

If follows a lot of advice from Stephen Rapp, US War Crimes Ambassador at Large, Human Rights Watch and International Centre for Transitional justice (see blog, April 2011)

You can see the new rules for yourself by downloading them from there.

You can download the original July 2010 rules here and the first set of amendments made in October 2010 here

Key points in amended rules seem to be:
- new bail regime, specifically provision in which a detained person pending investigation should be released on bail after one year if investigation is not completed except in 'exceptional circumstances.' (section 4 and 10)
- new right for lawyer of accused to be present before a magistrate if he or she is making a confessional statement, though they cannot say anything. (Section 6: NB: This right does not exist in current Bangladesh law).
- provision to allow tribunal to review any of its own orders. (Section 7: Though note this is not an appeal to a separate appellate court)
- provision stating that 'An accused pleading not guilty will get at least three weeks time for preparing his defence.' (section 11)
- provision that states that a person charged with an offence 'shall be presumed innocent until he is found guilty.'(section 12)
- a provision that gives the right to to a defendant to 'engage his counsel as his choice who is legally authorised to appear before the tribunal. (Section 12: NB: since the lawyer has to be legally authorised this does not effect the existing rule relating to foreign counsel which states that any foreign lawyer has to get the permission of the Bar Council which has stated that it is not legally able to allow non-Bangladeshi counsel to appear.)
- a provision that makes clear that the prosecution must prove its case 'beyond reasonable doubt' (section 16) , and altering the existing rule on alibi evidence ensuring that a 'mere failure to prove the plea of alibi ... shall not render the accused guilty. (section 17)
- a clarification on when statement given in the course of an interrogation of an accused can be used as evidence. Section 20 states:
'(3) Any statement made to the investigation officer or to the prosecutor in course of investigation by the accused is not admissible in evidence except that part of the statement which leads to discovery of any incriminating material.'
(This seems to be quite a shift from what the Tribunal has stated numerous times in court and as part of one ruling, as part of its justification that no lawyer need be present during an interogation, that nothing said during an interrogation can be used as evidence.)
- power given to the tribunal to issue orders to ensure protection of witnesses and victims (section 21)

Are there any other key provisions that I have missed? (please comment)

Too soon to make any clear judgment on this, but it does seem at first glance that whilst some important developments have taken place through this amendment, these amendments are far from what Rapp, Human Rights Watch and other international lawyers have argued are necessary.